author: Price, J.

text:
    Boyer et al. v. The M. D. Knowlton Company et al.

      Contracts of conditional sale of personal property — Though made in another state — Must be subject to requirements of Section' 4155-2, Revised Statutes — Rule of comity between states — Rights of vendor, mortgagee and intervening parties — In cafse of failure to renew chattel mortgage — Effect of mortgagee holding possession under neglect of renewal — Law of chattel mortgages.

    1. Written contracts of conditional sale of personal property situate in Ohio, although made in another state, must be made and verified as provided in Section 4155-2, Revised Statutes, in order to preserve the title in the vendor, as against subsequent purchasers and mortgagees in good faith and creditors, even if such contracts are in accordance with the law of the state where entered into. The rule of comity between states does not supersede compliance with said section.
    2. One who obtains a lien by chattel mortgage on personal property situate in this state, and files the same in the proper office as required by Section 4151, Revised Statutes, but who neglects to renew the same as required by Section 4155, Revised Statutes, may take possession of 'the mortgaged property, after the time, for such renewal has expired, where the terms of the instrument authorize the taking of possession, on the breach of its conditions, or for the better security of the mortgage claim; and taking possession before other creditors acquired a valid lien gives the mortgagee a prior claim on the property or its proceeds as against such other creditors.
    (No. 11996 —
    Decided November 21, 1911.)
    Error to the Circuit Court of Miami county.
    On the 28th day of July, 1905, John L. Boyer and the other plaintiffs in error became sureties for William Howland, a party defendant, upon a promissory note for $1,000 payable on demand to the Piqua Savings Bank,

      On the 11th day of August, 1905, to secure the payment of said note and save said sureties harmless, said Howland executed to plaintiffs a chattel mortgage upon certain machinery, tools, and other personal property in the box factory in the city of Piqua, Ohio. This mortgage was duly filed. Payments of interest on the note were made by Howland at different dates, the last of which was made April 28, 1907. The mortgage was never refilled.
    On the 14th day of October, 1907, the bank demanded payment of the note by the sureties, mortgagees. They paid the note and immediately took possession of the mortgaged property, closed down the plant and locked the door. This possession continued until a receiver was appointed, who took charge of the property mortgaged and perhaps other property and sold the same under order of the court making his appointment.
    Certain general creditors of Howland and others who had sold him bills of goods on contracts of conditional sale, contested the priority of- the above chattel mortgage on the ground that it ceased to be a lien when the mortgagees neglected to refile the same, although they took possession of the mortgaged property before any process was levied by the general creditors. And the general creditors attacked the conditional sales contracts.
    On hearing of these conflicting claims on the funds arising from the sale, the court of common pleas found in favor of the plaintiffs in error, and that the mortgage should be first satisfied, after allowance to Mrs. Howland of $500 in lieu of a homestead.
    Other creditors appealed from this finding and decree to the circuit court, where the following disposition of the case was made, as shown by the judgment entry: “ * * * and the court having heard arguments of counsel, upon consideration finds that the chattel mortgage of the plaintiffs as set forth in their petition is void as against the creditors of William Howland, defendant, notwithstanding that the plaintiffs took possession of the property described in the mortgage before any other creditor obtained a lien thereon and before the appointment of the receiver herein, to all which plaintiffs except.” Mrs. Howland was allowed $500 in lieu of a homestead, as had been done in the court of common pleas.
    The court then found that the conditional sale contracts were invalid as liens and ordered all parties to the controversy to be paid as general creditors merely.
    The case is here on error to obtain a reversal of the finding and decree of the circuit court.

      Mr. G. A. Brooks and Mr. A. F. Broomhall, for plaintiffs in error.
    The first decision which seems to pass upon this proposition is found in Wilson v. Leslie, 20 Ohio, 161. See also Brown & Co. v. Webb, 20 Ohio, 389; Cass v. Rothman, 42 Ohio St., 380; Francisco v. Ryan, 54 Ohio St., 307; Kilbourne v. Fay, 29 Ohio St., 264.

      The Ohio cases clearly leave the rule in Ohio that, if the mortgage for lack of change of possession or lack of filing or renewal, or for various other defenses, is void against creditors who seek to assert their rights before the mortgagee takes possession, yet the effect of taking possession of the property by the mortgagee in advance of the other creditors, places them upon a different plane.
    In all the cases to which we have been cited by counsel for general creditors that hold this doctrine, we find the element of possession was wanting.
    The one Ohio case we recall on this proposition is Cooper v. Koppes, 45 Ohio St., 526. On examination it will be found that the decision in that case turned entirely on the fact that the mortgagee did not obtain possession of the property before the other creditors sought to enforce their rights by legal process; so that case is not in conflict in any way with the other Ohio cases heretofore cited — in fact, it rather emphasizes the rule between the mortgagee who takes possession and the one who does not before the rights of the general creditors are sought to be enforced by law.
    In the case at bar, the mortgagee took possession after the time for refiling was past, it is true, but before any creditors of any kind whatsoever had made themselves evident or secure, by levying upon the goods. We maintain, therefore, that the taking possession by the mortgagee was a substitute for refiling, as refiling is a substitute for possession, and that such “taking of possession” by the mortgagee made the mortgage valid against all other so-called creditors who had done nothing to establish their claims, nor make good their liens.
    In the case of Francisco v. Ryan, 54 Ohio St., 307, objections to the mortgage were more serious than in the case at bar, but nevertheless, the court held an unfiled mortgage void only as long as in mortgagor’s possession and if mortgagee takes possession before adverse rights attach, mortgagee’s title becomes complete. This is further supported by Coe v. Columbus, etc., Co., 10 Ohio St., 404; Jones, Witter & Co. v. Stauffer, 54 Ohio St., 664.
    In addition to the Ohio authorities upon this subject, we call the attention of the court to the following citations from the decisions of other states. These appear to be particularly applicable. Case v. Jewett, 80 Am. Dec., 752; Morrow v. Reed et al., 30 Wis., 81; Bank v. Oium, 44 Am. St. Rep., 533; Howard v. Bank, 10 L. R. A., 539; Ullman v. Duncan, 9 L. R. A., 683.

      Mr. William Harry Gilbert, for The M. D. Knowlton Co., defendant in error.
    Section 4155-2, Revised Statutes, stipulates that these contracts shall be void unless the terms of the statute are complied with, “as to subsequent purchasers and mortgagees in good faith and creditors.” Does the word “creditors” in this statute include general creditors who have no specific liens on the property, or is the statute limited to those who have fastened liens upon the property? It is as well settled in statutes relating to conditional sales as in statutes in regard to chattel mortgages, that the word “creditors” refers solely to creditors who hold some lien upon the property. The reason for this is the fact that the vendor or the mortgagee in instruments not properly filed, or with an omission of an affidavit from the same, have no less rights than formerly and such failure to record or attach affidavits does not give a mere creditor a specific right in the property conditionally sold. It merely leaves the property in such a condition that the general creditors by diligence may acquire prior liens thereon. Jones on Chattel Mortgages (4 ed.), Sec. 245; In re Chadwick, 50 W. L. B., 413; Bowen v. Wagon Works, 91 Tex., 390; Hall v. Implement Co., 33 Tex. Civ. App., 526; Stewart v. Beale, 7 Hun, 405; Stephens v. Meridian Britannica Co., 160 N. Y., 178; Sheldon v. Wickham, 161 N. Y., 500; Jones v. Graham, 77 N. Y., 628.
    In Ohio a chattel mortgage is not void as against that 'class of creditors who were equally remiss with the mortgagee and took no steps, to fasten upon the property for the payment of their debts. It is void only as to such creditors of the mortgagors and subsequent purchasers and mortgagees whose rights attach before the mortgage .is filed. Wilson v. Leslie, 20 Ohio, 166.
    It is averred in the amended answer and cross-petition of The M. D. Knowlton Co. that the contract was entered into at the office of the defendant in the city of Rochester, New York, by the acceptance thereof of the order of said How-land forwarded by mail, together with the conditional contract of sale, and that the contract in the form in which it is drawn, signed and acknowledged is in strict conformity to the laws of the state of New York.
    Therefore, the contract became binding at the time the goods were delivered to the transportation company and the bill of lading given for the same. Under this provision of the contract, as well as the general facts, by which the order and contract were forwarded by Howland from Piqua, Ohio, by mail, to The M. D. Knowlton Co., at Rochester, New York, and there accepted by the company, makes it a New York contract. The law of the place where the contract was made, governs it so far as the validity or the obligation of the contract is concerned. Cochran v. Ward, 5 Ind. App., 89, 51 Am. St. Rep., 229; Miller v. Wilson, 146 Ill., 523, 37 Am. St. Rep., 186; Brewing Co. v. De France, 51 Am. St. Rep., 329; Wilson v. Mill Co., 150 N. Y., 333, 55 Am. St. Rep., 680; 1 Mechem on Sales, Sec. 648; Machine Works v. Lang, 67 N. H., 348, 68 Am. St. Rep., 675.
    It will be observed that under the requirements of the statute of New York it is not necessary to attach an affidavit to the conditional contract of sale. In this respect, therefore, the contracts in question were executed in strict conformity to the statute of New York.

      Mr. Charles M. Cist; Mr. Edgar W. Cist and Messrs. Long & Kyle, for The C. S. LaBoiteaux Co. and Kupfer Brothers, defendants in error.

      The appointment of the receiver in the action and his taking possession of all the property of Howland, operated as an execution and levy upon said property for the benefit of all the creditors; and the proceeds of said property are to be distributed according to the priorities and liens existing upon said property at the time of said appointment and possession. High on Receivers, Sec. 2; Cheney v. Cycle Co., 64 Ohio St., 215.
    There is no doubt, under the authority of Wilson v. Leslie, 20 Ohio, 161, and other subsequent cases, that until the mortgagee has lost the right under his mortgage, as against creditors, to take possession of the mortgaged property, the title and lien of the mortgagee may be perfected by such possession and he can hold the property or maintain his lien against the world, although the mortgage be not filed.
    The filing of the mortgage is a substitute for the change of possession of the mortgaged property. Cass v. Rothman, 42 Ohio St., 380.
    This is true because no specific time being provided after which the mortgage may not be filed the delayed mortgage is just as effective when filed as if it had just been given, and works no greater harm to general creditors. Jones on Mortgages, Sec. 262; Sidener v. Bible, 43 Ind., 230.
    In the case of Cooper v. Koppes, 45 Ohio St., 625, this court has recognized the principle. In that case the mortgagee attempted to refile his mortgage four days after the expiration of one year. An execution was afterwards levied upon the property by general creditors. The court held, that if the mortgagee failed to refile his mortgage within thirty days preceding the end of the year as provided by law, he thereby lost the right either to refile it or to file it as an original mortgage, and that by no act on his part could he thereafter revive his lien.
    The New York cases cited by this court with disapproval in the Koppes case have now been overruled by the New York courts also. The latest New York case directly in point is Stephens v. Perrine, 143 N. Y., 476.
    In the case at bar there was no affidavit whatever upon the instruments. There was nothing to show the actual amounts of the claim, or how much was due. The record gave the public no information beyond the fact that such instruments had once been given by Howland to the Knowlton company. But even if they had stated the amount, the law requires the sanctity of an oath. Benedict v. Peters, 58 Ohio St., 534; Cross v. Carstens, 49 Ohio St., 575; Hanes v. Tiffany, 25 Ohio St., 549; Blandy v. Benedict, 42 Ohio St., 295; Remington & Son v. Central Press Co., 13 C. C., 542; Cash Register Co. v. Closs, Assignee, 12 C. C. N. S., 15.
   Price, J.

The M. D. Knowlton Company, a creditor residing in Rochester, New York, who holds contracts of conditional sales to Howland as the basis of its several claims, and others who may be termed general creditors, joined in an attack on the validity of the chattel mortgage held by the plaintiffs in error. The said New York company claims superiority over plaintiffs in error, because their mortgage had expired, and over the general creditors, because it held title to the property or goods sold to Howland by virtue of the contracts of conditional sale, and this company is in this court on a cross-petition in error.

It lost recognition of its title in each of the lower courts, for a very substantial reason. The vendor failed to comply with Section 4155-2, Revised Statutes, which prescribes what shall be done where conditional sales are made. The contract must be in writing, signed by the purchaser, with a statement thereon under oath containing the amount of the claim, which contract, or copy thereof, with proper affidavit shall be deposited with the recorder of the county where the party signing the instrument resides, etc., etc. It is entirely clear, if not conceded, that the contracts under consideration were not in compliance with the statute, and by its terms are void as to subsequent purchasers and mortgagees in good faith, and creditors.

It is argued that these contracts were good under the laws of New York and that rules of comity between the states should make them good in Ohio. We think rules of comity can not be recognized to overthrow an express statute of our state. It prescribes a rule of conduct to govern our own citizens, and we do not think that residents of another state should be more favored, unless the statute so permits.

Therefore we affirm the judgment of the lower court on this branch of the case, and which is represented by the cross-petition in error.

We have remaining the one important issue left. What is the standing of the chattel mortgage under which plaintiffs in error claim? It had been duly executed and filed, and contained the affidavit required by Section 4154, Revised Statutes. This mortgage had been executed to plaintiffs in error to indemnify them for becoming sureties for the maker, Howland, on the demand note to the bank for $1,000, and the affidavit properly describes the nature of their liability for him to the bank. The note was executed July 28, 1905, and the affidavit was sworn to on an early day of August the same year.

The statute as to renewal of chattel mortgage, Section 4155, Revised Statutes, provides: “Every mortgage (chattel) shall be void, as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a statement verified as provided in the last section, together with a statement exhibiting the interest of the mortgagee in the property at the time last aforesaid, claimed by virtue of such mortgage, is again filed in the office where the original was filed.”

As already stated, this mortgage was never renewed, but it remained on file, and the next incident connected with it happened on October 14, 1907. The evidence shows that on that day the bank demanded of the sureties-mortgagees the payment of this note, and that in compliance with the demand they paid it, and at once resorted to their rights under the unrenewed mortgage by obtaining the key to the plant, closing it and taking possession of the mortgaged property. There is no dispute about the taking possession as alleged, but it is urged that as the Knowlton Company, who sold on condition, .and the other creditors, gave Howland credit at various times after the expiration of the year and before the taking of possession, the latter should confer no right superior to their claims.

This chattel mortgage contained a stipulation not uncommon to such instruments that if “default be made in the above conditions — (one of which was to save the sureties harmless) — or if any secreting or removal from the location, any abuse, or misuse, any sale, any seizure whatever by any process of law, of said goods or chattels, or any part of them, be either made or attempted, by said mortgagor, or by any person or persons claiming under him or in behalf of either or by or in behalf of any creditor or creditors of said mortgagor, or if from any other cause the security shall become inadequate, then said mortgagee or successors may take immediate possession of said property, or any part of it wherever found, and sell the same at public or private sale for the highest price they can obtain and pay indebtedness and expenses. * * * ” It is plainly the law that this instrument was good as between the parties if never filed, and so if filed but not renewed. See Francisco et al. v. Ryan, 54 Ohio St., 307. So we are brought directly to the question, what was the efficacy of taking possession before any other valid lien attached?

It is well enough, at this point, to examine the lang-uage of our statute regulating the filing of chattel mortgages, Section 4150, Revised Statute. It reads: “A mortgage, or conveyance, intended to operate as a mortgage, of goods and chattels, which is not accompanied by an immediate delivery, and followed by an' actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, subsequent purchasers, and mortgagees in good faith, unless the mortgage, or a true copy thereof, be forthwith deposited as directed in the next section.”

The words “accompanied by an immediate delivery and followed by an actual and continued change of possession of the thing mortgaged,” refer to things necessary to be done if possession or immediate delivery is not made and possession continued without change, and yet it was decided in Wilson v. Leslie, 20 Ohio Report, 161, that a temporary withdrawal of the mortgage from the files is not fatal to the same. The head-note of the case is that “such a mortgage is not void in toto by reason of an omission to make the deposit ‘forthwith’ but becomes effective whenever it is deposited. And in case of a temporary withdrawal of the paper from the recorder’s office, the mortgagee will not be prejudiced by a levy made at the instance of another creditor.” So we are not to so strictly construe this language as to. render the statute practically inoperative. The great purpose of the law is to prevent secret contracts for liens, and to protect creditors who act in good faith in selling to the mortgagor. The spirit of this decision is that, if the mortgagee should not file his mortgage for ten months, and during that time the mortgagor obtains credit, and the mortgagee then files his mortgage duly verified as required by statute, his lien thus obtained will prevail over the claim of the creditors who obtain no lien, but who sold before the mortgage was filed.

In Brown v. Webb, 20 Ohio Rep., 389, we have a case giving another angle from which the law of that day was viewed. The second paragraph of the syllabus is: “A mortgage of personal property, where the mortgagor retains possession by virtue of the mortgage, with a power of sale, is void, as against subsequent purchasers and execution creditors. But when possession is taken by the mortgagee the mortgage becomes valid so as to protect the mortgaged property from execution creditors not having made a levy, and against subsequent purchasers from the mortgagor.”

The changes made in the statute since that decision have not affected the rule so stated, as we may judge from later decisions of this court. In Francisco et al. v. Ryan, 54 Ohio St., 307, it is said that, “a mortgage on a stock of merchandise, though made in good faith to secure a bona fide debt of the mortgagor, when it allows him to retain possession with a power of sale in the course of his business, is ineffectual to create a lien as against creditors of the mortgagor who assert their rights against ■ the property while it remains under his control, but it is valid as between the parties; and when the mortgagee takes possession, either with the consent of the mortgagor given at the time, or under authority conferred by the mortgage, his title becomes complete and the property is no longer subject to legal process issued against the mortgagor, nor liable for his debts except to the extent of any surplus that may remain after the satisfaction of the mortgage debt and proper charges for enforcing the same.”

It would seem that our present question is solved by that decision, and but little need be added now.

Another case recognizing the same principle is Huber Manufacturing Co. v. Sweny et al., 57 Ohio St., 169. Our present views are in harmony with that case also.

These considerations and these cases are not in conflict with Cooper v. Koppes, 45 Ohio St., 625, for there the court was dealing with the results of not verifying and refiling. The fact that the mortgagee took absolute possession under his mortgage, before other creditors obtain any lien, was not involved or decided.

We need not discuss all the Ohio cases. They are cited in the briefs. The mortgage in this case, though not renewed and refiled as directed by law, was still good as between the parties and furnished a strong arm with which the mortgagee took possession, and that too before any other creditor asserted any valid lien.

It is urged that the neglect to renew acted as a fraud on creditors who sold goods after time to renew expired and before possession was taken; but it must be remembered that this was an indemnity mortgage for the protection of sureties on a demand note. Demand may have been made of the maker of the note, but the evidence is, that these sureties paid when demand was made on them and that they promptly took possession. There is no evidence to sustain the charge of fraud.

We think the circuit court erred in its judgment, and it is reversed, and judgment is given here for plaintiffs in error.

Judgment reversed.

Spear, C. J., Davis, Siíauck and Johnson, JJ., concur. Donahue, J., concurs in the first branch of syllabus but not in the second or in the judgment.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The Great Atlantic & Pacific Tea Company v. The Village of Tippecanoe.

      Municipal council cannot impose license — Upon one who only solicits orders, when — Interpretation of Section 3673, General Code— In view of guaranties of Bill of Rights.

    In view of the guaranties of the Bill, of Rights, Section 3673 of the General Code, cannot be so interpreted as to authorize a municipal council to impose a license fee upon merchants who do not sell upon the public streets or places, but only solicit orders and negotiate future sales at the residences of their customers.
    (No. 12633 —
    Decided November 21, 1911.)
    Error to the Circuit Court of Miami county.
    Plaintiff brought suit in the court of common pleas to recover from the defendant license fees which it had paid to the village pursuant to a demand of its" officials, the payment being made under protest. It alleged that it had, for many years, conducted in the city of Dayton a large retail store for the sale of groceries and laundry supplies of various kinds, including many articles not made nor grown by it. It had extended its business to the incorporated village of Tippecanoe, where it has been supplying goods from its store to the residents .of the village in the following manner and not otherwise:
    Every two weeks an employe of said company, while delivering goods previously ordered by its customers in said village, solicits and takes for future delivery such orders as he can secure from said customers. At the time of taking such orders he enters the same upon an order book, which he carries for that purpose, and the orders so taken are mailed or delivered by him to the Dayton store, where they are accepted. At the expiration of two weeks from the time the orders are taken the goods so ordered are put up in separate packages at the Dayton store, and each package is marked with the name and address of the customer to whom it is to be delivered. These packages are then delivered by the same or another employe of said company to the persons who ordered the articles they contain. In delivering said packages the said employe is in the habit of using a horse and wagon, but in traversing the streets of said village attracts no attention by means of any outcry or by the blowing of horns, ringing of bells or any other means or device. The said employe does not offer for sale, sell or bargain to sell any of the goods that he has with him in said village, nor does he deliver to any person any goods not previously ordered of said company in the manner aforesaid, but in each case an interval of two weeks elapses between the soliciting or taking of any order and the delivery of the goods so ordered. In this manner the said orders are solicited, the said goods delivered and the price thereof collected by said employe at the time of delivery unless credit is extended, and these acts take place upon the private premises of the customers of said company and not upon any street, alley or public place of said village. The said employe makes no sales or deliveries or takes no orders upon his own account and has during the years aforesaid conducted the business of said company in said village in no other manner than that stated.
    December 2, 1907, the village council passed an ordinance entitled: “An ordinance to license hawkers, peddlers and hucksters.” The first section of the ordinance provides that “it shall be unlawful for any hawker, peddler or huckster to sell or canvass for the sale of any article,” etc., “without first applying for and procuring a license.” Its second section provides that “A hawker, peddler or huckster who desires to sell any article, goods, wares or merchandise within the corporate limits of the village aforesaid, or who desires to canvass for the sale of such article,” etc., “within the corporate limits, shall apply to the mayor for a license,” which shall be issued upon payment of the prescribed fee. The fourth section provides that any person violating the ordinance shall on conviction thereof be fined in a sum not less than 50 cents nor more than $25.00 per day and costs of suit, and each day such person or persons shall be engaged in selling or canvassing, as aforesaid, shall be deemed and held a separate offense.
    The mayor and marshal of the village knowing the manner in which the plaintiff's business was conducted, and acting upon authority assumed to be afforded by said ordinance demanded of the plaintiff and its employes a license fee of two dollars a day so long as such business should be conducted in said village and threatened said employes with arrest unless such fees should be paid.
    The plaintiff denying that such license fee upon its business was authorized by said ordinance nevertheless paid the same under protest to avert the threatened arrest of its employes and the interruption of its business, giving notice at the time that it would bring suit for the recovery thereof, and so paid under like demand and protest until its payments amounted to $104, for which it prayed judgment.
    To this petition the village demurred generally. The demurrer was sustained and the petition dismissed. In the circuit court that judgment was affirmed.

      Mr. Stewart L. Tatum, for plaintiff in error.
    The ordinance is one to license peddlers. The soliciting of orders from customers to whom a grocer’s clerk is making his regular deliveries is not peddling.
    We will not here dispute the authority of the village to license peddlers. Section 1536-100 (par. 3), Revised Statutes; Section 1536-327, Revised Statutes.
    The title of the ordinance clearly indicates that the ordinance was an exercise of the foregoing powers and of those only, the title being as follows: “An ordinance to license hawkers, peddlers and hucksters.”
    The village solicitor contends, however, that, notwithstanding the title, the ordinance constitutes a proper exercise of the powers of another statute, namely, that authorizing the licensing of persons who solicit orders; such persons being commonly called, solicitors, canvassers, drummers, or sample sellers. Section 1536-328, Revised Statutes.

      The ordinance itself is limited in express terms to hawkers, peddlers and hucksters.
    There is nothing in the ordinance to bring it within the statute authorizing municipalities to license persons who solicit orders. In the first place that statute provides that the municipality may license “all persons” who solicit orders. The ordinance confines itself to hawkers, peddlers and hucksters.
    Moreover, even if the ordinance were an attempt to exercise the powers of this statute, it would be void because not consistent therewith. Thompson v. Mt. Vernon, 11 Ohio St., 688; Canton v. Nist, 9 Ohio St., 439; State v. Wells, 69 N. H., 424.
    For the foregoing reasons we think it clear that the ordinance is merely one to license peddlers.
    The best definition of a peddler which has come to our attention is in St. Paul v. Briggs, 85 Minn., 290.
    None of the marks of a peddler is present in our case.
    The cases are many and flat upon this proposition that such a person is hot a peddler. We cite a few of them and call the court’s attention particularly to the six first mentioned below:

      Hewson v. Englewood, 55 N. J. L., 522; Stamford v. Fisher, 140 N. Y., 187; Commonwealth v. Eichenberg, 140 Pa. St., 158; Kennedy v. People, 9 Col. App., 494, 49 Pac. Rep., 373; Olney v. Todd, 47 Ill. App., 440; Elgin v. Picard, 24 Ill. App., 340; Twining v. Elgin, 38 Ill. App., 356; Emmons v. Lewistown, 132 Ill., 380; Cerro Gordon v. Rawlings, 135 Ill., 36; Ballou v. State, 87 Ala., 144, 6 So. Rep., 393; Davenport v. Rice, 75 Ia., 77; Stuart v. Cunningham, 88 Ia., 191; Kansas City v. Collins, 34 Kans., 434, 8 Pac. Rep., 865; Commonwealth v. Farnum, 114 Mass., 267; Ex parte Taylor, 58 Miss., 478; State v. Hoffman, 50 Mo. App., 585; Radebaugh v. Plain City, 10 O. D. Re., 612, 28 W. L. B., 107; Mays v. Cincinnati, 1 Ohio St., 272.
    No brief was submitted for defendant in error.
   Shauck, J.

The title of this ordinance suggests that it was passed in the exercise of authority supposed to be conferred upon the municipality by Section 3670, General Code, which authorizes the municipality to regulate and license peddlers, and Section 3672 which confers authority to license “hawkers, peddlers,” etc., and Section 3673, which assumes to confer authority “To license transient dealers, persons who temporarily open stores or places for the sale of goods, wares or merchandise, and each person who, on the streets, or traveling from place to place about such municipality, sells, bargains to sell, or solicits orders for goods, wares or merchandise by retail.” By its title the ordinance applies only to hawkers, peddlers and hucksters. In essential respects the provisions of the ordinance are limited to the subjects of its title, for the first section provides only that it shall be “unlawful for any hawker, peddler or huckster to sell or canvass,” etc.; and the second section provides that “A hawker, peddler or huckster who desires to sell any article, goods, wares or merchandise within the corporate limits of the aforesaid village of Tippecanoe, or who desires to canvass for the sale of such article, goods, wares or merchandise within the corporate limits of said village, shall apply to the mayor for a license,” etc. Notwithstanding these terms limiting the operation of the ordinance to hawkers, peddlers and hucksters, there is an apparent attempt to apply to them provisions of Section 3673 of the statute, which so far as the statute is concerned do not seem to be limited to persons following those peculiar vocations. The averments of the petition, which the demurrer admits to be true, exhibit the course and conduct of the plaintiff’s business and make it appear to be essentially different from the conduct of business by any of the three classes of persons named in the ordinance. It has a fixed place from which it does business; it does not carry about the merchandise which it offers for sale; it does not sell at the time it offers for sale, but enters into contracts for future sales; it does not carry on negotiations or any part of its business upon the streets, highways or public places, but at the residences of its customers. That these features broadly and substantially distinguish its business from that carried on by hawkers, peddlers and hucksters is made clear by the dictionaries and numerous cases cited in the briefs. The apparent attempt of the village council to exercise the power assumed to be conferred by Section 3673 of the statute to require license from those who at the residences of their customers bargain to sell or solicit orders for goods, wares, or merchandise by retail, and the attempt of its officers to enforce the ordinance with that interpretation seems to require that to the interpretation of the section there be applied a limitation which the constitution imposes. The concession that the business of the plaintiff is within the terms of this section of the statute will not aid the defendant, for if so interpreted the statute very plainly transcends the limits prescribed by the constitution. So much has been said respecting the guaranties of such constitutional provisions as are contained in our Bill of Rights demonstrating that the guaranteed right to the enjoyment and use of property includes the right to make contracts generally, that the cases cited in the briefs show that it has become common knowledge that the general assembly may not by the discriminating imposition of burdens participate in the rivalries of business, except to the extent that may be authorized by consideration of the public weal. It is not necessary to enlarge upon the subject since the first proposition of the syllabus in Marmet v. The State, 45 Ohio St., 63, is an authoritative and exclusive definition of the subjects upon which a license fee may be imposed: “The general assembly has power (except as limited by section 18 of the schedule to the constitution) to regulate occupations by license, and to compel, by imposition of a fine, payment of a reasonable fee, where a special benefit is conferred by the public upon those who follow an occupation, or where the occupation imposes special burdens on the public, or where it is injurious to or dangerous to the public.” It is true that the court was there considering a statute to exact the fee by the direct act of the general assembly, but the point is wholly unimportant since it could not confer upon municipalities a power which it does not itself possess. It may not any more authorize the municipal council to lay an imposition upon the ordinary use of the streets and the private residences of the city than it could provide for such imposition by an act of general operation. We might regret this conclusion if we were informed that in the village of Tippecanoe those who sell merchandise at retail outnumber those who buy from them. Not being so informed, we are serene in the belief that obedience to the requirements of the constitution will in this instance, as it usually does, result in the greatest good to the greatest number; nor need we vex ourselves to inquire why at a time when so much is done by legislation and adjudication to prevent the stifling of competition by private contracts, an attempt should be made to stifle it by legislation.

Judgment reversed and demurrer overruled.

Spear, C. J., Davis, Price, Johnson and Donahue, JJ., concur.


author: Davis, J.

text:
    Kiser v. The Board of County Commissioners of Logan County et al.

      Taking of private property — For improvement of living stream■ — ■ Violates Article I, Section ip of Constitution — Invalidity of Section 4567c, Revised Statutes.

    The amendment, in parenthesis, to Revised Statutes, Section 4567c, passed March 23, 1893 (90 O. L., 123), authorizes the taking of private property in the improvement of, and removal of an obstruction from a living stream for the public benefit without compensation to the owner, in violation of Article I., Section 19, of the constitution, and is therefore null and void.
    (No. 12755 —
    Decided November 21, 1911.)
    Error to the Circuit Court of Logan county.
    On the 5 th day of August, 1909, George W. Kiser, the plaintiff in error, commenced his action in the court of common pleas of Logan county, Ohio, to restrain the above named defendant in error from removing his mill-dam and destroying the water power afforded thereby and the water rights theretofore enjoyed by him which they were threatening to do in pursuance of the findings and orders of the board of county commissioners of Logan county, Ohio, in a proceeding on the petition of Mary Connolly, C. K. Hartzler and others under Sections 4567a, 4567& and 4567c of the Revised Statutes of Ohio, all without allowing or paying to him any compensation. Among other grounds for injunction the plaintiff in error, in his said petition below, complained that all the said proceedings and orders of said board are void for the reason that the provisions of said sections of the statute are in conflict with Section 19, Article I.„of the Constitution of Ohio. On the 5th day of August, 1909, a temporary injunction was allowed and an undertaking was filed and approved. On the 30th day of September, 1909, the answer of all the defendants below was filed. On the 18th of October, 1909, plaintiff below filed his motion to reform said answer, which motion was overruled by the court of common pleas on the 22d of November, 1909. On the 30th day of April, 1910, the cause was heard on the petition, answer, and evidence, and that court thereupon found and decreed for the defendants. The plaintiff having filed his appeal bond on the 6th day of May, 1910, perfected his appeal to the circuit court of Logan county. The plaintiff at the October term of the circuit court, 1910, on leave, withdrew his said motion to reform the answer and filed his motion for judgment on the pleadings; that the proceedings and orders alleged in the plaintiff’s petition are void and that the temporary injunction theretofore allowed be made perpetual and for costs; ,on consideration whereof the circuit court overruled the same, and the plaintiff not desiring to offer any evidence, said cause was submitted to the court on said petition and answer and on consideration the circuit court found and decreed for the defendants, dissolved said injunction and dismissed said petition and gave judgment against the plaintiff for costs.
    The plaintiff in error has filed his petition in error in this court to reverse the judgments of the circuit court and court of common pleas.

      Mr. James Kernan, for plaintiff in error.

      Mr. Ernest Thompson, for defendants in error.
   Davis, J.

Whether or not a proprietor has abandoned his rights or his property, is usually a question of fact for a jury to answer, and the answer must depend primarily. upon an intention by the proprietor to abandon. This must be found from all the facts and circumstances of the case. But mere non-user is not ordinarily sufficient to establish the fact of abandonment; and both reason and authority suggest a doubt whether non-user for a period of statutory limitation, as in this case five years, would be proof of abandonment unless accompanied by a possession adverse to the proprietor. In this case, however, we may put aside consideration of the sufficiency of the findings by the county commissioners, and we may even waive all questions concerning the authority of the general assembly to declare property or rights to be abandoned upon such findings, because the case may be readily resolved upon another objection to the statute under which these proceedings were had.

The parenthetic provision of the statute, which controls this case was inserted by amendment, in an act passed April 11, 1884 (81 O. L., 135) and is as follows: “(But in any case, where a mill has become useless or has been destroyed, and has so remained for more than ten years, without any attempt to repair or rebuild the same, the mill-dam and water-rights and privileges belonging to the same shall be deemed abandoned and the right thereto as against the public health, convenience and welfare, under this act, shall cease and be barred; and the commissioners may, under this act, without bargain or compensation, cause such mill-dam to be removed and the water course upon which it is located cleaned' out and improved, when an apportionment has been made, as herein-before stated.)”

By an act passed March 23, 1893 (90 O. L., 123), the period of limitation in the provision above quoted was changed from ten to five years; and so it has remained.

If it be conceded that “such mill-dam,” that is, a mill-dam existing under the conditions stated in this amendment, may be seized and destroyed by the county commissioners for the public welfare, yet it is apparent that so long as any value, however small, remains in the mill-dam and water rights, the taking of it “without bargain or compensation” is a violation of Article I., Section 19, of the Constitution of Ohio.

The argument is made that the constitution emanated from the people and that the welfare of the people is paramount to any private interest. Very true, but written constitutions have heretofore been framed chiefly to protect the weak from the strong and to secure to all the people “equal protection and benefit.” They have been constructed upon the theory that majorities can and will take care of themselves; but that the safety and happiness of individuals and minorities need to be secured by guaranties and limitations in the social compact, called a constitution. Hence, while it is declared in Article I., Section 19, of our Constitution, that private property shall be held “subservient to the public welfare,” it is also declared that it shall ever be held inviolate and shall not be taken for the public use without compensation, in most cases compensation first to be made in money.

It is regrettable that there should be an apparent necessity for re-stating such familiar principles; but there seems to be a growing disposition to legislate, by ordinance and by general statute, regardless of constitutional limitations', thus imposing upon the courts the odium of declaring them to be unconstitutional.

A further contention is made that the plaintiff in error has lost all of his property rights “as against the public health, convenience and welfare,” because of non-user and failure to repair for more than five years, when the amendment to Revised Statutes, Section 4567c, declares that in such case “the mill-dam and water-rights and privileges belonging to the same shall be deemed abandoned, and the rights thereto as against the public health, convenience and welfare, under this act shall cease and be barred.” Waiving, as we did at the outset, any question as to the legislative power to so declare, and granting the contention to be true as a general proposition, it seems to us that there are at least two answers to it in the present case.

This is not a prosecution for nuisance, nor a proceeding to abate a nuisance. It is a proceeding under Sections 4567a, 4567& and 4567c of the Revised Statutes for the improvement of a living stream by the removal of a mill-dam alleged to hinder the free passage of water in the natural channel of such stream. In Section 4567c, excepting of course the amendment in parenthesis which is now under review, the legislature recognized the constitutional right of the owner to compensation and damages. The removal of a dam under this act is called an improvement for the public welfare. It is declared that “if they (the commissioners) find that such improvement and removal will be conducive to the public health, convenience or welfare they shall report their findings in writing and order the auditor to enter the same on their journal, and they shall at once proceed to negotiate with the owner or owners for the purchase of such mill-dam or mill-dams of all rights, title and interest they may have to or in the same,” etc. Elsewhere in the same section provision is made for ascertaining and apportioning compensation and damages upon failure to agree with the owner or owners, or upon objections by the petitioners.

Then follows this amendment which attempts to foreclose inquiry into the fact of abandonment and declares that upon the mere non-user and failure to repair for more than five years “the same shall be deemed abandoned” and the commissioners are authorized to proceed “without bargain or compensation” to remove the dam and to clean out and improve the water course.

There can be no doubt that the dam and water rights belonging to the plaintiff in error could have been removed in the improvement of the living stream for the public welfare, just as in the other cases provided for in these sections, because all private property is held “subservient to the public welfare,” whether it has been abandoned or not; but “private property shall ever be held inviolate,” (Const., Art. I., Sec. 19), and when the owner is compelled to yield his rights to public use he is guaranteed compensation. Therefore, when the legislature undertook to authorize the commissioners to seize the property of the plaintiff in error “without bargain or compensation,” it went entirely beyond the limitations of the constitution.

Again, the defendants in error are estopped by their own answer in this case, from making this contention. 31 Cyc., 87-90. Answering the plaintiff’s petition they expressly admit the first allegation therein, namely, “that the plaintiff is the owner of the mill-dam and water rights sought by the proceedings and orders mentioned and referred to in his petition to be destroyed,” etc. If he is still the owner of the dam and water rights, he has not lost them. If the property is of any value whatever whether a mill or a million, he is entitled to compensation under the constitution. Therefore the amendment of Revised Statutes Section 4567c in parenthesis, passed April 11, 1884 (81 O. L., 135) and itself amended March 23, 1893 (90 O. L., 123) is null and void because it is in conflict with Article I., Section 19, of the constitution.

The judgment of the circuit court and the judgment of the court of common pleas are reversed and injunction made perpetual as prayed in the plaintiff’s petition.

Reversed.

Spear, C. J., Shauck, Price, Johnson and Donahue, JJ., concur.


author: Spear, C. J.

text:
    Harris v. O’Connell, Admr.

      Limitations of actions by creditors — Provisions of section 6113, Revised Statutes — Suit against administrator — Must be within two years — After his giving bond, etc. — Though commenced within six months after rejection of claim.

    The provision of section 6113, Revised Statutes, to the effect that an administrator who has given due notice of his appointment cannot be held to answer the suit of a creditor unless it be commenced within two years from the time of his giving bond, applies to a case where the claim, if owing, was due at the death of the decedent, and has not been allowed by the administrator, but has been rejected; and a suit upon such claim will be defeated by a plea of the two years’ statute of limitations if not commenced within two years from the giving of such bond although it may have been commenced within six months after the rejection of such claim, and although the claim was presented to the administrator within the period of two years from the time of his giving bond. Speidel v. Phillips, 78 Ohio St., 194, distinguished.
    (No. 12768 —
    Decided November 21, 1911.)
    Error to the Circuit Court of Hamilton county.
    An action was commenced by Robert Harris, plaintiff in error herein, against John G. O’Connell, defendant in error, in the superior court of Cincinnati by the filing in said court, February 25, 1909, of a petition claiming to recover for services alleged to have been rendered by plaintiff for the deceased from September 15, 1900, until January 20, 1907, as secretary, amanuensis, and companion. The petition further alleged that the services were rendered at the constant request of decedent, and have not been paid for, or any part thereof. On January 21, 1909, plaintiff presented his said claim to the defendant, administrator, for allowance, who thereupon returned the same to plaintiff with his rejection in writing endorsed thereon.
    As a separate and distinct defense the defendant in his answer pleaded as follows:

      “V. And by way of defense to plaintiff’s petition, defendant says, that Robert H. Robinson, deceased, referred to in plaintiff’s petition, departed this life on the 20th day of January, 1907; that defendant was duly appointed, gave bond according to law and qualified as the administrator of the said estate of said Robert H. Robinson, deceased, in the probate court of Hamilton county, Ohio, on the 30th day of January, 1907; that notice of the publication of his appointment as such administrator was published on the - days of February, 1907, and proof of such publication was duly filed in the said probate court on the 16th day of February, 1907; that he has continued to serve as administrator of the estate of said Robert H. Robinson, deceased, since his appointment as aforesaid, and that no other administrator has been appointed of said estate; that he has since said appointment at all times resided in Cincinnati, Hamilton county, Ohio. Defendant says that no assets have come into his possession as such administrator, save and except such assets as came into his possession at the time he qualified as administrator as aforesaid on the said 30th day of January, 1907; that plaintiff was a resident of Cincinnati, Hamilton county, Ohio, at the time the said Robert FI. Robinson, deceased, departed this life and plaintiff then knew of his death; that the plaintiff herein had personal knowledge of defendant’s appointment and qualification as administrator as aforesaid, at the time of his appointment and qualification; that plaintiff’s alleged claim and cause and right of action, if he had any, accrued at the death of Robert H. Robinson, deceased, to-wit: on the 20th day of January, 1907; that said alleged claim was not presented to this defendant as administrator, as aforesaid, for allowance until the 21st day of January, 1909; that said claim was by this defendant rejected on the 22d day of January, 1909, and that suit thereon was not commenced, against this defendant, until more than two years after the appointment and qualification of defendant as administrator of the estate of said Robert H. Robinson, deceased, and until more than two years after the defendant gave bond as aforesaid as such administrator, to-wit, 25th day of February, 1909. Defendant says the right to sue him as administrator of said Robert H. Robinson, deceased, on the alleged claim of plaintiff set forth in his petition, was, at the time said petition was filed herein, and still is barred by the statute of limitation, by virtue of section 6113, Revised Statutes of Ohio, which this defendant pleads and relies on as a bar to plaintiff’s right of recovery herein.”
    To this defense the plaintiff interposed a demurrer on the ground that the same does not state facts sufficient to constitute a defense.
    This demurrer being overruled, and the plaintiff not wishing to plead further to said defense, judgment was rendered against the plaintiff dismissing his petition. This judgment being affirmed by the circuit court, the plaintiff here asks a reversal of both judgments.

      Mr. Orville K. Jones and Mr. Joseph W. O’Hara, for plaintiff in error.
    Sections 6097 and 6113 are both remedial statutes, and should be liberally construed.
    Both of the above sections appear in chapter 2, title 2, part third of the Revised Statutes, under the heading “Civil Procedure,” and part third is designated as “Remedial.”
    In the first chapter of title 1, under the general and preliminary provisions, the following rule is laid down: “Sec. 4948. (Construction of part three.) The provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice,” etc.
    This rule is recognized and applied in Springfield v. Walker, 42 Ohio St., 543; Mock v. Bowman, 2 C. C., N. S., 574.
    As sections 6097 and 6113 appear in the same chapter and title of the' statutes, they are a part of the same system of legislation and in pari materia, and each • should therefore be construed with due regard to the other.
    This principle is well settled, and we therefore only cite the following cases in support of it: Cincinnati v. Guckenberger, 60 Ohio St., 353; State, ex rel., v. Jones, 66 Ohio St., 453.
    As section 6113 provides a general limitation for actions against an estate, whereas section 6097 is of a special nature, and only provides for actions against an estate upon claims which have been rejected by the administrator, the latter section controls.
    Where there is any conflict or discrepancy between statutes of a general and those of a special nature pertaining to the same subject-matter, it is a well settled rule that the special provision may be regarded as an exception to the general, and as controlling the particular class of cases to which it relates. Cincinnati v. Holmes, 56 Ohio St., 114; Doll v. Barr, 58 Ohio St., 120; Ambrose v. Byrne, 61 Ohio St., 155; Speidel v. Phillips, 78 Ohio St., 199; Mitchell v. State, 78 Ohio St., 347.
    The cases of Stewart v. McLaughlin, 47 Ohio St., 555, and Speidel v. Phillips, supra, were approved and followed, and strong support given our contention, in the very recent case of Bray v. Darby, 82 Ohio St., 47. Haymaker's Exrs. v. Haymaker, 4 Ohio St., 272; Bradley v. Vail, 48 Conn., 375; Continental Life Ins. Co. v. Barber, 50 Conn., 567.

      Mr. Albert D. Shockley, for defendant in error.
    Is it not plain to be seen that the enforcement of section 6113 cannot work a hardship upon the creditor; the situation is one for which he alone is responsible. 2 Mass. Gen. Laws, page 1294.
    It is true that there are exceptions mentioned in section 6113, but they do not apply to the present case and section 6097 is nowise referred to. The important thing desired to be accomplished by the statute was to fix a positive time for the settlement of estates, namely two years. In this connection the language of the supreme court in the case of Jones v. Jones, 41 Ohio St., 420, is pertinent.
    It is unquestionably the general policy of the state to have estates closed up as promptly as possible, and this is so, in reference to every particular part of the administration process. Harter, etc., v. Taggart’s Exrs., 14 Ohio St., 122; Miller v. Ewing, 68 Ohio St., 183.
   Spear, C. J.

The answer and demurrer thereto present for consideration the question which of two statutes of limitations applies to the case, section 6113 or 6097, of the Revised Statutes. Provisions of those sections pertinent to the case are:

“Sec. 6113. (Limitations of actions by creditors.) No executor or administrator, after having given notice of his appointment, as provided in this chapter, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within two years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned.”

“Sec. 6097. (When claim barred, if not sued within six months after its rejection; what shall be deemed a rejection of a claim.) If a claim against the estate of any deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection', if the debt, or any part thereof, be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be-forever barred from maintaining any action thereon; and no action shall be maintained thereon after the said period, by any other person deriving title thereto from such claimant.”

That is to say, is the case at bar ruled by the statute providing for a two year limitation after qualification by the administrator, (section 6113), or by the six months limitation prescribed after the claim has been rejected? The courts below applied the two year limitation. Counsel for plaintiff in error contend that this construction is erroneous, their claim being that, notwithstanding the limitation of two years prescribed by section 6113, a creditor is entitled to the benefit of the six months allowed by section 6097 for bringing an action upon a rejected claim after date of rejection where such claim is presented to the administrator within the period of two years from the time of his giving bond. In support of this contention they further claim that sections 6097 and 6113 are remedial and should be liberally construed; that, being part of the same system of legislation, they must be construed together, and that section 6113 provides only a general limitation for actions against an estate whereas section 6097 being of a special nature and providing for actions against an estate on claims which have been rejected by the administrator, the later, section' controls. If these premises were all admitted the conclusion of course would not necessarily follow, for the ■intent and purpose of the general assembly in enacting the legislation would remain to be ascertained, and this from a consideration, not only of the sections cited but of the entire legislation which bears upon the subject, the inquiry to be approached with a purpose of ascertaining its spirit and of giving effect to all its parts, and of avoiding, if possible, conflict between the several provisions. After such consideration we find ourselves unable to agree with the conclusion of the learned counsel.

It cannot, we think, be doubted that the general trend of legislation shows the purpose of the acts bearing upon the matter of settling the estates of deceased persons is to effect as speedy a settlement of them as is consistent with the careful discharge of duty by the administrator and fairness to the creditor. This purpose is disclosed in section 6113 as it now stands. Formerly, and until the act of April 8, 1898, (93 O. L., 91), the limitation was four years. That act reduced it to two years, as given in the extract from the section hereinbefore quoted. Indicating a like purpose is the amendment of section 440, Revised Statutes, May 9, 1902, (95 O. L., 446), providing that the supreme court may advance for early hearing out of their order on the docket “cases involving controversies or questions arising' in the administration, under the laws of Ohio, of the estate of any deceased person.” Other provisions of statute indicating like policy might be specially cited, but we deem it unnecessary.

Like construction of our statutes has been given by this court in a number of cases cited by counsel, notably in Harter v. Taggart, 14 Ohio St., 122, where it is observed by Peck, J., that “the general policy is, undoubtedly, to effect a speedy settlement of the estates of deceased persons at the least possible expense,” adding language pertinent to the present case, that “this obvious policy would be in part defeated if, as is contended, the holder of a doubtful claim cannot be compelled to sue and test its legal validity — -if he abstains from demanding an indorsement of allowance, he may delay until the last hour, and then, when all else is ready for final distribution, he may institute legal proceedings and delay it indefinitely. * * * A construction which carries with it such consequences illy accords with the obvious policy of the statute.”

The same rule of construction is held by Granger, J., in Jones v. Jones, 41 Ohio St., 420, (decided before the passage of the act of April 8, 1898), to this effect: “Considering the controlling importance of a prompt settlement of the estate of a decedent, so that his creditors may be paid, and the shares of his heirs or legatees ascertained and distributed, the provisions that claimants against the estate shall prosecute their claims within so many months, or years, stand upon a footing somewhat different from the ordinary statute of limitations. * * * Such provisions should be construed in furtherance of the main purpose and intent of the entire statute. It is plain that the general assembly considered that four years, computed from the moment when the law created a responsible representative of the decedent, competent to allow or reject claims, and liable to suit upon rejected claims, was as much time as ought to be allowed for any ordinary creditor to delay the distribution of an estate. This time is clearly defined as four years. Of course this four years ought not to begin to run until the law has completed the creation of a responsible representative of the decedent.” Judge Rockel, in his excellent work on Probate Practice, pages 473 and 530, treats intelligently upon the subject, and to like import.

While the general subject of limitations of actions by creditors against administrators has been involved in a number of cases decided by this court, the precise question on similar facts has not been presented so far as we are aware in any reported case. It is, however, insisted by counsel for plaintiff in error that the question at bar has been directly decided in Speidel v. Phillips, 78 Ohio St., 194, and an extract from the opinion is relied upon in support of the statement. This proposition loses sight of the essential and controlling fact, distinguishing that case from the one at bar, viz: that the claim sued upon had once been allowed by the administrator, while in the case at bar the only action of the administrator upon it was a rejection, and of course it must follow that the language of the opinion should be understood as applying to the case then before the court and not to an essentially different case; so that what is said has reference to the claim of a creditor whose claim has once been allowed, such allowance having suspended the operation of the two year statute, and not necessarily or reasonably to a claim that had never been allowed.

Counsels’ construction of the two sections would permit a creditor whose claim had been rejected two years and six months in which to bring action instead of two years as section 6113 distinctly provides, thus subordinating the provision of section 6113 to the provision of section 6097 and rendering the two inconsistent, and in reality annulling the former section, whereas they are not necessarily inconsistent, but, applying to the situation the well recognized rule that it is the duty of courts in construing statutes to give effect to all the provisions of a statute where that can reasonably be done, the sections cited can be harmonized and full effect given to both. No reason has been given, or can be, we think, why a creditor should be permitted to override the two year limit and delay the settlement of the estate six months simply by putting off the presentation of his claim. Taking the two sections together we are clearly of the opinion that the natural and proper construction and the one consistent with the general legislation on the subject of the settlement of estates, requires the creditor whose claim has not been allowed but has been rejected to sue within two years from date when suit might have been brought as well as within six months from the date of rejection. This construction gives effect to both sections; the opposite construction wholly overrides one.

These views 'are believed to be entirely consistent with all the Ohio cases on the general subject of limitations of actions by creditors of deceased persons, and to harmonize with statutory direction as to the duty of administrators in the regular sequence of steps in the settlement of estates as shown specially by sections 6108, 6109, 6110, these being followed by the section under consideration (6113), which prescribes in direct terms that the administrator shall not be held to answer unless the suit be commenced within two years from the time of his giving bond.

Attention is called by counsel for plaintiff in error to the case of Bradley v. Vail, 48 Conn., 375, and to Con. Life Ins. Co. v. Barber, 50 Conn., 567, as sustaining their contention. There appears to be some support afforded counsels’ claim by the holding in those cases, but neither is precisely analogous to our case and we cannot see that the doctrine of either should be considered as determinative of the question under review. Those cases involve a consideration of the effect of general statutes of limitation upon special provisions bearing on the subject of the settlement of the estates of deceased persons; our case involves construction of statutes of limitation applying only to the settlement of the estates of deceased persons.

These conclusions require an affirmance of the judgments of the courts below.

Affirmed.

Davis, Sháuck, Price and Johnson, JJ., concur.


author: Donahue, J.

text:
    Hall et al. v. The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.

      Construction of railroad tracks across street — May be enjoined— By owner of abutting property, when — Injury to access to property — Different from injury to public.

    1. Where the construction of railroad tracks in or across a street that affords the only reasonable means of access to property abutting thereon, will materially impair and interfere with the owner’s right of access to and egress from such property, or will materially depreciate the value thereof, the owner may enjoin the construction until the right is acquired under proceedings instituted against such owner for the appropriation of private property, or otherwise, although his property does not immediately abut upon that portion of the street over which the railroad tracks are proposed to be located.
    2. In such case the owner of the property suffers an injury different in kind, and not merely in degree, from the injury suffered by the public.
    (No. 11836 —
    Decided December 12, 1911.)
    Error to the Circuit Court of Hamilton county.
    On the 17th day of July, 1905, the council of the city of Cincinnati granted by ordinance to The Pittsburg, Cincinnati, Chicago and St. Louis Railway Company the right to construct and maintain three tracks and switch leads for two additional tracks across Ludlow street in said city and south of Front street. Said three tracks and leads to run from three separate points from the west side of Ludlow street and to converge toward a common point at the southeast corner of Ludlow and Front streets, at which point all of said tracks and leads to be merged into one track extending from the southeast corner of Ludlow and Front streets by a curved line connecting with the track then existing in the center of Front street at a point 150 feet east of Ludlow street.
    On the 18th day of August, 1905, and before any of these tracks had been laid by the railroad company, Thomas J. Hall filed his petition in the common pleas court of Hamilton county against The Pittsburg, Cincinnati, Chicago and St. Louis Railway Company asking that it be enjoined from constructing any of these tracks in Ludlow street, and averring that he was the lessee with the privilege of purchase of a parcel of property abutting on Ludlow street, but not abutting immediately on that portion of the street over which the proposed tracks were to be placed, and averring that said Ludlow street was the principal means of ingress and egress to and from the property so held by him under a lease for a term of years with the privilege of purchase, and that the placing of the tracks as contemplated in the ordinance would materially interfere with, if not entirely destroy, the plaintiff’s use of Ludlow street in which he claims an easement for ingress and egress as far as Front street, that street being the first intersecting street to the north of his property.
    Nellie Van Deventer Smith, as administratrix de bonis non with the will annexed, and trustee of James Walls, claiming to be the owner of the fee in said property, subject to the lease to Flail, filed an answer and cross-petition averring substántially the same facts and asking for the same relief.
    The defendant for its answer admitted that it is a corporation, and that Ludlow street from Front street to Water street and below said street is upon a descending grade, and denied each and every other allegation, partly for want of knowledge; and by way of further answer the defendant averred that it had at the time of filing its answer, to-wit, February 24, 1906, constructed across Water street three tracks, but that the same were constructed under authority of an ordinance duly granted by the council of the city of Cincinnati. Upon the filing of the petition a temporary restraining order was allowed. A motion to dissolve was heard by a judge of the common pleas court and overruled, but later the defendant was permitted to lay one track across Ludlow street for the purpose of determining the extent such track would interfere with the grade of the street, and subsequently the defendant was permitted to lay an additional track. On the final hearing in the common pleas court the prayer of the plaintiff’s petition, and of the cross-petition of Nellie Van Deventer Smith was granted and the injunction against the defendant made perpetual. An appeal was taken to the circuit court of Hamilton county, and that court granted an injunction against the railroad company enjoining it from constructing and maintaining its tracks in such manner as to divert the flow of water from the gutters into the middle of the street, and for maintaining the fill and change of grade of the street in front of plaintiff’s lot, but refused an injunction restraining the defendant from constructing its tracks across Ludlow street in the manner and form specified in the ordinance granting it that right and privilege. The circuit court also separately stated its findings of fact and conclusions of law which, in so far as may be necessary for the consideration of this case, are copied at length in the opinion.

      Messrs. Stephens, Lincoln & Stephens and Mr. Frank FI. Kemper, for plaintiffs in error.
    The following propositions are, we think, established beyond controversy by repeated adjudications of this court: First, that the owner of property bounded by a street, has an easement of access in the street; second, that such an easement is property; third, that any permanent obstruction which materially interferes with the easement constitutes a taking of property, without compensation; fourth, that where there is an attempt to take property in this way without compensation, injunction is the proper remedy. Crawford v. Delaware, 7 Ohio St., 459; St. Ry. Co. v. Cumminsville, 14 Ohio St., 523; Railway Co. v. Lawrence, 38 Ohio St., 41; Callen v. Light Co., 66 Ohio St., 166.
    This easement was first established as a part of the law of real property in the jurisprudence of this state in cases where the grade of an established street was changed, to the injury of abutting owners. In the early cases of McCombs v. Akron, 15 Ohio, 474, and Crawford v. Delaware, 7 Ohio St., 459, this court held that the property-owner had suffered a legal injury and gave him redress, although explicitly recognizing its ruling was contrary to the almost unanimous course of judicial decisions in other states. 1 Lewis on Eminent Domain (2 ed.), Secs. 91f and 227, p. 540;
      McQuigg v. Cullins, 56 Ohio St., 649; Madden et al. v. Railway Co., 21 C. C., 73, affirmed 66 Ohio St., 649; In re Melon Street, 182 Pa. St., 397; Glaessner v. Brewing Assn., 100 Mo., 508, 13 S. W. Rep., 707.
    We think the reasoning in the opinion of the supreme court of Minnesota, in the case of Kaje v. Railway Co., 57 Minn, 422, 59 N. W. Rep., 493, expressed the truth of the situation.
    There are numerous authorities which recognize that a property-owner whose property fronts on a ctd de sac, such as this part of Ludlow street, may have greater rights than the owner who fronts on a street open in both directions. 1 Lewis on Eminent Domain (2 ed.), Sec. 118, p. 291; Brakken v. Railway Co., 29 Minn, 41, 11 N. W. Rep., 124; Hayes v. Railway Co., 46 Minn, 349, 49 N. W. Rep., 61; Penna. Co. v. Stanley, 10 Ind. App., 421, 37 N. E. Rep., 288; Johnston v. Railroad Co., 18 R. I., 642, 29 Atl. Rep., 594; Gargen v. Railway Co., 89 Ky., 212, 12 S. W. Rep., 259; Railroad v. Lersch, 58 Ohio St., 639.

      Messrs. Maxzvell & Ramsey, for defendant in error.
    Considered in the abstract the printed argument of the other side is both interesting and instructive. It lacks relevance to the case at bar, however, in that it contends for principles of law foreclosed by the decision of this court in the recent case of Manufacturing Co. v. Beatty, 65 Ohio St., 264, and upon certain assumptions of fact foreclosed by the special findings of the circuit court. Although a general exception to the judgment was taken, the findings of fact were not excepted to and the testimony is not made a part of the record.
    This was not an action for damages under Section 3283, Revised Statutes, nor a proceeding to compel condemnation, under Section 6448, Revised Statutes. Plaintiff sought equitable relief by way of injunction onfy, upon the allegation that the laying of the tracks in question amounted in law to a taking of his property; that is to say, to a substantial obstruction of his rights as an abutter upon the street. There was therefore but one issue; was or was not any property right of the plaintiff threatened when defendant commenced the laying of its tracks?
    The tracks were laid under authority of an ordinance duly passed, and in such manner as to make the “least practical change” in the grade of the street. They crossed the street at a point considerably more than one hundred feet from the nearest corner of plaintiff’s property. The property itself was accessible to and from highways at every point independently of the crossing point of these tracks.
    The case of Manufacturing Co. v. Beatty, above mentioned, determines every question of law raised by these findings, and makes it inappropriate to engage the attention of the court with a discussion of the many points and authorities cited by the other side.
   Donahue, J.

The most important question in this case arises from a consideration of the sixth finding of fact by the circuit court and its first conclusion of law.

This sixth finding of fact is as follows:

“Sixth. That the plaintiff, Thomas J. Hall, is carrying on a retail coal, sand and gravel business upon the property aforesaid and has a large amount of money invested in said business; that in its prosecution he owns and employs a large number of teams and wagons for the purpose of hauling the coal, sand and g'ravel in which he deals from his elevator and bins situated on the aforesaid property to his customers in the city of Cincinnati; that his business is extensive and that before the acts of the defendant complained of he was constantly using Ludlow street as a means of egress from his premises to the city of Cincinnati and from ingress from said city to said premises; that said Hall is the owner of a large number of steamboats and barges which land at said property.to discharge their contents, and that his only means of hauling to and from the river frontage of said property is by way of Ludlow street south of Giffin street; that the bank of the river on said property east of Ludlow street is too steep to allow of the hauling of heavy property from the river over the property itself; that the access to and egress from the property described in the petition has been materially impaired and interfered with by the tracks of the defendant crossing Ludlow street in the manner aforesaid; that the ascent of said Ludlow street, from Giffin street to Front street, is now steeper at places and more difficult than it was before said tracks crossed said street; and said tracks interfere with the hauling of héavy loads up the grade of Ludlow street and over the obstruction caused by said tracks; that the property described in the petition has been materially depreciated in value by reason of the defendant’s tracks crossing Ludlow street as aforesaid.”

For the purposes of this error proceedings, it is conclusively established by this finding of the circuit court that the construction of these tracks across Ludlow street not only materially impairs and interferes with access to and egress from the property described in the petition, but also that this property has been materially depreciated in value by reason of the defendant’s tracks crossing Ludlow street. This being true, it is not important that the tracks are not laid over and across that portion of Ludlow street upon which the plaintiff’s property abuts. If this street affords the only reasonable access to the property of the plaintiff, although his property does not abut immediately upon the obstructed portion, the injury to plaintiff’s property is just as substantial and his rights exactly the same as if they were placed directly in front of his property, and before the defendant can construct and maintain such tracks it must condemn the plaintiff’s easement in this street and compensate him for all damage to his property. This sixth finding of the circuit court so clearly distinguishes this case from the case of the Kinnear Manufacturing Co. v. Beatty, 65 Ohio St., 264, that it would seem unnecessary to refer at length to that case, were it not for the fact that counsel for defendant in error relies largely upon the law as there announced. In that case it fully appeared that the plaintiff had reasonable access by other streets and alleys. In fact in the very proceedings she complained of an alley had been provided which furnished her a better means of access than the one vacated. In that case this court announced in the second paragraph of the syllabus that where the owner has reasonable access to his property by other streets and alleys, although the distance he may have to travel in some directions may be greater than before the vacation, he has no right to enjoin the obstruction of the vacated portion. The court in the opinion on page 282, in reviewing the authorities and declaring the law, as established by these authorities say: “The decisions in this state have clearly established that an abutting lot owner has such an interest in the portion of the street on which he abuts, that the closing of it up, or the impairment of its use as a means of access, or the addition of a new burden, is a taking of private property for a public use, and cannot be done without compensation.” Citing McCombs v. Akron, 15 Ohio, 474; Crawford v. Delaware, 7 Ohio St., 459; Street Railway Co. v. Cumminsville, 14 Ohio St., 523. “The principle of these cases, and they have been frequently followed, applies with like justice and force where a portion of a street is obstructed or vacated, that affords the only reasonable access to the property of an owner, although his property does not abut immediately upon the obstructed portion.” To the same effect are the cases of Madden v. Pennsylvania Co. and Welch v. Pennsylvania Co., 21 C. C. R., 78, affirmed by this court in 66 Ohio St., 649. It would, therefore, seem to be fully settled in Ohio that whether property abuts upon that particular portion of the obstructed or vacated street, yet if that street affords the only reasonable access to the property the owner’s rights are the same as if his property actually abutted upon the obstructed parts, but where his property is not physically in contact with the vacated portion of the street and he has other reasonable means of access, then the owner has no right of action to enjoin the obstruction or recover damages.

The circuit court in this sixth finding of fact found “that said Hall is the owner of a large number of steamboats and barges which land at said property to discharge their contents, and that his only means of hauling to and from the river frontage of said property is by way of Ludlow street south of Gifñn street; that the bank of the river on said property east of Liidlow street is too steep to allow of the hauling of heavy property from the river over the property itself.” This finding fully meets every requirement of the law authorizing the owner of property not in physical contact with the vacated or obstructed portion of a street to enjoin an obstruction or recover damages therefor. It does not merely find that there is no other reasonable means of access, but that there is no other means whatever except Ludlow street south of Giffin by which these plaintiffs in error can reach that particularly valuable portion of their property, and also finds that they cannot use the remainder of the same property for this purpose for the reason that the river banks are too steep to permit of doing so. While a portion of this same property may have a reasonable means of access, yet it clearly appears from this holding that all of the property has no such reasonable means, because of the fact that the surface of the property itself prevents access from one portion of it to another. Certainly it is not sufficient that the owner of property may have reasonable access to a remote portion of it if he can have no access to the portion that he is using, and which by reason of the purposes to which it is devoted is the most valuable part thereof.

The circuit court, having so found the fact, state as a part of the first conclusion of law that because the plaintiffs property is not adjacent to that portion of Ludlow street proposed ü> be crossed by these tracks, and that he also has access to another portion of his lot through Lawrence street, that he is not entitled to an injunction. Clearly this conclusion is wrong. The plaintiff is entitled to reasonable access to all of his property, and it is not sufficient that he has access to a portion if for any good reason he cannot use the property itself to reach all other parts of it necessary to his use and enjoyment thereof. There is still a further reason, and perhaps a stronger one, why this first conclusion of law is erroneous. This court held in the case of Kinnear Manufacturing Company v. Beatty, supra, that the proprietor of property not abutting upon that portion of the street obstructed or vacated, would not be entitled to any relief unless the inconvenience he suffers differs in kind, and not in degree, from that of the general public. The circuit court found from the evidence not only that Ludlow street was the only means of hauling to and from the river frontage of said property and that therefore the access to and egress from the property described in the petition had been materially impaired and interfered with by the tracks of the defendant crossing Ludlow street, but further found that: “The property described in the petition has been materially depreciated in value by reason of the defendant’s tracks crossing Ludlow street as aforesaid.” Yet, notwithstanding this finding of fact, the court as a part of its first conclusion of law holds that: “The same inconvenience, though less in degree, will be suffered by the public using the street for like purposes,” and that therefore plaintiff is not entitled to an injunction. It is impossible for this court to understand how the property rights of the general public are affected by the laying of these tracks, or how its property is materially depreciated in value by reason thereof. In other words, the public has no property right but only the right or easement of travel over and upon this street. These plaintiffs have this same right in common with the public, and to -that extent the rights of the plaintiffs and the rights of the public stand equal, but the circuit court further finds that access to their private property is seriously impaired and interfered with and that the value of this private property is materially depreciated by reason of the obstruction of the street complained of.

In this error proceeding this finding of fact is conclusive, nor is any claim made that it is not sustained by evidence. The only power and authority this court has is to determine whether the law has been properly applied to the state of facts so found by the circuit court. It is clear from this finding that the injury that would result to these plaintiffs from the construction of these tracks does not differ from the injury and inconvenience suffered by the public in degree only, but does substantially differ in kind in that the access to their private property will be seriously impaired and interfered with, and the value of the property itself materially depreciated, and it therefore necessarily follows that plaintiffs are entitled to injunction restraining the defendant in error from constructing and maintaining these tracks until it has in a proper proceedings appropriated the plaintiffs’ easement in the street and compensated them for the damages to their private property. Railway Company v. Lawrence, 38 Ohio St., 41.

The judgment of the circuit court in so far as it refused the plaintiff in error an injunction against the laying of these railroad tracks across Ludlow street is reversed, and this court proceeding to render the judgment that the circuit court should have rendered upon the facts found by it, the Pittsburg, Cincinnati, Chicago and St. Louis Railway Company, defendant in error, is hereby enjoined from laying or constructing the additional tracks across Ludlow street complained of in plaintiff’s petition. And it is hereby ordered that said defendant in error remove all such tracks that it may have placed across said street since the commencement of this action, and the judgment of the circuit court in all other' respects is hereby affirmed.

Judgment accordingly.

Spear, C. J., Shauck, Price and Johnson, JJ., concur.