author: Williams, J.

text:
    The State of Ohio ex rel. Attorney General v. Joseph C. Bloch.

      Insolvency court — Act to establish in certain counties — For relief of probate court — 92 O. L., 475 — 93 O. L., —94 O. L., 353 — Validity of the act — Constitutional law.

    The act “to establish a court of insolvency in counties containing a city of the second grade of the first class, and for the relief of the probate court in such counties” (92 O. L., 475), and the acts conferring additional and concurrent jurisdiction on such court (93 O. L., 464, and 94 O. L. 353), are constitutional and valid.
    (Decided December 3, 1901.)
    Quo Warranto.
    This cause has been submitted upon a general demurrer to the petition which reads as follows:
    ■ pirst cause of action.
    J. M. Sheets, attorney general of the state of Ohio, gives the court to understand and be informed: That on the 11th day of March, 1896, the general assembly of the state of Ohio passed an act entitled “An act to establish ‘A court of insolvency’ in counties containing a city of the second grade of the first class, and for the relief of the probate court in such counties,” and printed in volume 92, on pages 475 and 478, both inclusive, of Ohio Laws: That the county of Cuyahoga, in said state, at the- time when said act was passed, contained and ever since has contained a city of the second grade of the first class, and is and was the only county in the state containing such city; that at the general election held on the first Tuesday after the first Monday in the month of November, in the year 1896, the defendant, Joseph C. Bloch, in pursuance of the provisions of said act, was elected to the office of judge of the court of insolvency within and for said county of Cuyahoga, and gave bond and qualified in all respects as required by said act; that thereafter, to-wit, on the 8th day of February, 1897, as provided in said act, said defendant entered upon the duties of judge of the court of insolvency, as the same are prescribed in said act, and ever since said date said defendant has been acting, and claiming the right to act, as judge of the court of insolvency within and for said county of Cuyahoga, and to do and perform all and singular the acts, and to exercise all and singular the powers in said act named and provided, for the full period of five years from and after February 9, 1897; and further claims the right to receive, and ever since said 9th day of February, 1897, has been receiving the salary and emoluments provided by law as compensation for the judge of the court of insolvency in said county of Cuyahoga, and the said county has been and now is subjected to large outlays and expenses in preparing a proper court room, books, stationery, clerks and constables for the conduct and maintenance of said court.
    And the court is further informed and given to know that said defendant, Joseph C. Bloch, has usurped, entered into and unlawfully holds said office of the judge of the court of insolvency within and for said county of Cuyahoga, and is unlawfully exercising and claiming the right to exercise the aforesaid powers, and each of them, because, as plaintiff avers, the said act purporting to create a court of insolvency within and- for said county of Cuyahoga, and the office of judge of said court within said county, and conferring certain jurisdiction upon said court, and certain judicial and other powers upon said judge, are in violation of the provisions of the constitution of the state of Ohio, especially of section 26 of article 2, which provides that all laws, of a general nature, shall have a uniform operation throughout the state; and of sections 7 and 8 of article 4 of the constitution which permit but one probate court to be established in any county, and confers exclusive jurisdiction upon such probate court in probate and testamentary matters, and the appointment and settlement of accounts of adminisrators, executors and guardians; and of section 10 of article 4 of the constitution Avhich makes the existence of a judicial district a prerequisite to the election of a judge other than those provided for in said constitution, and of section 1 of article 4 of the constitution Avhick in its present amended form does not except the creation of courts from the operation of section 26 of article 2 of the constitution, and of section 2 of article 10 of the constitution which restricts the term of county officers to a period of three years.
    SECOND CAUSE OF, ACTION.
    Said relator further informs and gives the court to understand that on the 17th day of March, 1898, the general assembly of the state of Ohio passed an act entitled “An act conferring additional jurisdiction on the courts of insolvency in any county containing a city of the second grade of the first class,” printed in volume 93 of page 464 of Ohio laws, that the defendant, Joseph C. Bloch, ever since the passage of said act has been- unlawfully claiming that said court of insolvency has power to entertain, and that he, as judge of said court, has the right and power to hear and determine error cases from justices of the peace, and cases appealed to said court of insolvency from justices of the peace, in said. county of Cuyahoga, and also cases appealed to the court of common pleas in said county and transferred by said court to said court of insolvency, and has been unlawfully exercising the power to entertain, hear and determine such cases in said county; but plaintiff avers that said act is in violation of the above recited provisions of the constitution of Ohio, and especially of section 26 of article 2, for the reason that said act purports to confer a jurisdiction and power upon justices of the peace, judges of the court of common pleas, and the circuit court in said county of Cuyahoga which is not conferred upon like officers and courts in other counties of the state.
    THIRD CAUSE OP ACTION.
    The relator further informs the court that the act last above referred to is void and of no effect, because, while it purports to confer jurisdiction on said court of insolvency to entertain appeals directly from justices of the peace, there exist no statutes providing a mode for perfecting appeals to said court of insolvency from justices of the peace.
    FOURTH CAUSE OF ACTION.
    Said relator further informs and gives the court to understand that on the 16th day of April, 1900, the general assembly of the state of Ohio passed an act entitled “An act conferring concurrent jurisdiction in certain matters upon courts of insolvency,” printed in volume 94, on page 353 of Ohio Laws, which purports to confer upon said court of insolvency concurrent jurisdiction with the probate court, and with the court of common pleas in certain cases therein enumerated, and to provide for appeals from said court of insolvency to the court of common pleas and circuit court of said county in such cases; and plaintiff avers that the defendant, Joseph C. Bloch, claims the right as judge of said court of insolvency, to exercise, and ever since the passage of said act has been unlawfully exercising the powers and jurisdiction which said act purports to confer upon said court of insolvency, and upon the judge of said court; but plaintiff avers that said act is in violation of section 26 of article 2 of the constitution of the state of Ohio in this, that it purports to confer jurisdiction on the court of common pleas and circuit court of said county of Cuyahoga other than is conferred upon those courts in other counties of the state.
    Wherefore your relator prays that said defendant be required to answer by what warrant he holds, uses,; exercises and enjoys,, or claims to hold, use, exercise and enjoy said office of judge of the court of insolvency for said county of Cuyahoga, and why he uses or exercises the powers hereinbefore set forth, or any of them, and that said defendant may be ousted therefrom; and for all other proper relief.”
    The three statutes whose constitutional validity is called in question, were passed, respectively, March 11, 1896 (92 O. L., 475, 478); March 17, 1898 (93 O. L., 464), and April 16, 1900 (94 O. L., 353). It is not deemed necessary to copy them here. The first of the acts establishes a court of insolvency in counties containing a city of the second grade of the first class (Cuyahoga county), provides for the election of a judge of that court, prescribes his term of office, and confers on the court jurisdiction of all assignments under the insolvency laws, and of certain other matters. Each of the other two statutes purports to confer additional jurisdiction on the court. The objections made to these statutes will be noticed in the opinion.

      J. M. Sheets, Attorney General, and Blandin, Bice & Ginn, for plaintiff.
    That the determination of the constitutionality or unconstitutionality of this kind of statutes is difficult is evidenced from the utterances of the different members of this court, as differently constituted from time to time during the last thirty or forty years, and also from the fact that the court in these eases has from time to time been aided by the eminent lawyers of the state, and that yet in Mott v. Hubbard, 59 Ohio St., 199, the learned counsel were unable to extract from the multitude of such cases already determined a governing principle to assist the court in knowing when a statute is or is not in harmony with this requirement of the constitution.
    In view of this situation, we have felt that any efforts we might put forth along the line of the citation of cases already decided, and any attempt to extract therefrom a governing principle of decision that might control the case at bar, would not lighten the labors of the court in reaching a correct decision.
    However difficult it may be to discover and clearly state a principle that will uniformly guide to a correct determination, and. that would enable both the legislature and the courts to understand and apply this provision of the constitution (that all laws of a general nature shall ' have uniform operation throughout the state), it is certainly of very great importance that it should be done if possible.
    No one can doubt, and everyone regrets that almost hopeless complexity lias wrought itself into the statute law of the state in, the effort to obey, upon the one hand, and to evade upon the other, this salutary provision.
    This provision was ingrafted into the constitution as the result of, and designed to be a cure for, a series of flagrant evils that had arisen under the constitution of 1802, which was recognized everywhere, and universally deplored. No one can doubt that the men who framed the new constitution recognized the existence of these evils, and believed they had provided in the new constitution protection against their recurrence, and also that they had put the remedy into unmistakably clear, distinct and explicit terms. It may be a matter of curious speculation, therefore, to consider how it. lias happened that this salutary remedy for serious ills has failed of its evident object, but on the contrary, after a long series of years, and a multitude of decisions upon the subject, the matter is in such a state of uncer' tainty and doubt as to be equally perplexing both to the courts and to the legislature, and our statute books are full of laws of doubtful constitutionality.
    Under the constitution of 1802, the legislature, the courts, and the people had all become accustomed to special legislation, and the evils resulting therefrom. The evils were evident to all and regretted by all. The elimination of this evil was one of the chief ends, if not the chief end, designed to be accomplished in adopting the new constitution. But the old habits of thought with respect to special and class legislation which had grown up in fifty years under the old constitution, could not be eradicated as quickly as the words of the constitution could be changed. The words of the constitution prohibiting this class legislation were, indeed, changed, but the habits of thought that had developed under old regime remained. They were not to be so summarily disposed of or altered.
    The new legislature went at once to work under the influence of the old and fixed habit and mode of thought, and the way was not at once clear to them, how this new principle of general laws -was to be correctly applied to all the many subjects of legislation that were to be dealt with.
    Almost immediately the subject of classification of cities and villages came before the legislature to be acted upon; and although the new constitution had expressly required their organization by “general laws” which should “have uniform operation throughout the state,” it was not easily apparent to them, how this was practicable or possible. They conceived the notion that topographical differences, differences in population, and perhaps other differing conditions, rendered it indispensably necessary for different legislation in the “organization” of different cities, and that some device was therefore necessary, to give to this different legislation (which they deemed necessary) the appearance of being a general law and of having apparent uniform operation throughout the state, while in fact it should be a local law and of strictly local and limited application. It may be conceded that at first,- it was not designed by the legislature to evade the constitu' tional requirement; but they did not readily see how; it was practicable to obey it. However this may have been at first, it is now evident to all that a device, adopted at first, perhaps, as a result of a belief that it was necessary, has been since repeatedly employed to effect legislation that was clearly forbidden.
    The method employed was to classify cities and villages, fixing the class according to population, and then legislating for cities or villages of a designated class, and by this device pretend to comply with the constitutional requirement of uniformity throughout the state; although it was plain to everyone that the uniformity of operation was throughout the class, rather than throughout the state. It was speciously claimed, however, that this uniformity throughout the class, was necessarily uniformity throughout the state.
    This classification, as already stated, was doubtless, at first, resorted to, in view of a supposed necessity. By the careful students of the subject, however, it is now known that there is not, and there never was any such necessity. General laws for the organization of cities and villages, as required by the constitution, having uniform operation throughout the state, are now known to be both practicable and eminently desirable.
    When these laws came before the Supreme Court for judgment as to their constitutionality, we may presume that the judges acquiesced in the supposed necessity which the legislature had fancied they saw, and the first fatal step was taken of upholding the classification as being a necessity, and the uniformity throughout the class, was allowed to answer the constitutional requirement of uniformity throughout the state.
    When the attitude of the” Supreme Court toward this species of laws was established, and the principle of stare decisis invoked successfully to prevent the court from retracing its steps, then the extension of the scheme began. Territorial classification was continued and extended, for almost numberless purposes. Counties, containing a city or village of a designated grade or class, were made victims of local laws for various purposes: Jury commissions differently chosen and differently constituted were provided for in counties containing a city or village of a 'particular grade or class. Assessors were provided to be designated by appointment by the auditor in counties containing a city of a given grade or class. Roads, county buildings, bridges, school boards, equalization boards, and various other subjects were treated and governed by laws of uniform operation throughout a designated class of counties, when in fact there was only one such county. If the classification of municipalities was not yet fine enough to successfully limit the operation of the law to one county, some artful dodge was sufficient to exclude all but one county.
    Some of these laws brought before the Supreme Court, have met a varying fate. Some have been held void, and others valid. This court in its evident desire to give effect to the purpose of the constitutional provision, has sought to discover a test by which to determine when a law was of a “general nature,” so that it must be uniform throughout the state in its operation. If a given law is not embraced within the description of being of a “general nature,” the requirement of uniform operation throughout the state has no application to it. The court has reached the conclusion (Hixson v. Burson, 54 Ohio St., 470) that every law must he either of a “general nature” or of a local nature. It has repeatedly said that this “nature,” whether general or local, must be determined by the subject matter, and not by the operation given by the act itself (as being of local or universal operation). If the subject matter is general, then making it local in its operation instead of making it valid as a local law, makes it void. So the court is evidently seeking a rule by which to determine when it may be clearly and certainly and always known, by the inspection of an act, whether it has, or does not have, for its subject matter a matter of general as distinguished from local significance.
    It would seem, therefore, that if it could be cleai’ly, and certainly, and always known, whether the subject matter of a law was “local” or “general,” its operation could be, as clearly, as certainly, and as uniformly, known to be prescribed by the constitutional provision in question; those thus found to be local might have local operation only and be valid; all others must have uniform operation throughout the state, or be void.
    No law will ever be uniform in its operation throughout the state, which operates in only a part of the state, although it may operate throughout an artificial class of territory; and any declaration either legislative or judicial, which declares a law to have uniform operation throughout the state, which operates only in part of the state, can never be satisfactorily supported by any logic or argument, until logic and argument can change falsity into truth. Logic and argument may be so skillfully used as sometimes to conceal the truth and so to mislead, but they can never alter the foundations of truth.
    This court has said, and doubtless correctly said, that all laws might be classified as “general” or “local.” To say that this could not be done, would be to say that the constitution is incapable of interpretation, and therefore that its provisions could not be enforced. This would be manifestly absurd.
    If then laws are either, general or local, and if it is difficult to define the former, can “general” laws be certainly and definitely known by the principle of exclusion?
    If law.s are either general or local, then if we can know that a given law is, or is not, local, by that same token we may know that it is, or is not, general.
    This court has said, in Hixson v. Burson, 54 Ohio St., 470, 481, that “If the subject (of a given law) does or may exist in, and affect the people of every county in the state, it is of a general nature. On the contrary, if the subject cannot exist in, or affect the people of every county, it is local or special.”
    Plainly, then, the character, of the law, as general or local, cannot be determined by any words in the law that restrict its operation. To permit such restrictive words in the law to control its character as general or special, would be to permit the legislature to defeat the constitutional requirement of uniformity.
    If the law, in the language of this court above quoted, relates to a subject which cannot exist in any other than the designated locality, plainly it is a local law. Such a law prescribing the boundaries of a special school district, was sustained by this court in State v. Shearer, 46 Ohio St., 275. Fixing by law the boundaries of one of the school districts of the state could not be done by a general law, or by a law that would operate uniformly throughout the state. It would be a local law, and no art or artifice could make it a general law or give it uniform operation throughout the state. It was.a law upon a subject “which cannot exist in or affect the people of” any other locality, and therefore in the language of the court in Hixson v. Burson, supra, was “local” and valid.
    In State v. Shearer, 46 Ohio St., 275, the court distinguishes between a “school district” and “a school system,” and considers the former a proper matter for local legislation, and the latter a proper matter for general legislation. The former could not be general, and just as certainly the latter could not, under the constitution, be governed by a local law.
    Here, in our opinion, the court has recognized the principle which will give a rational and satisfactory application of this clause of the constitution. Any law which in its nature could not apply except locally may be enacted as a local law without any specious words seeming to make it uniform throughout the state. Every other law must be a general law and operate throughout the state, or it will be void.

      P. H. Kaiser, county solicitor, and Frederick L. Taft, assistant county solicitor for Cuyahoga county, for defendant,
    submitted a brief consisting mainly of a very complete and scholarly history of the powers and plan of our state judiciary. They cited the following cases: District Court Judges, In re. 34 Ohio St., 431; Cass v. Dillon, 2 Ohio St., 607; Lehman v. McBride, 15 Ohio St., 573; Indiana v. Milliken, 7 Ohio St., 383; State v. Archibald, 52 Ohio St., 1; Meyer v. Dempsey, 62 Ohio St., 637; State v. Ellet,
      47 Ohio St., 90; Hixson v. Burson, 54 Ohio St., 470; Mott v. Hubbard, 59 Ohio St., 199; State v. Buckley, 60 Ohio St., 273; State v. Cincinnati, 52 Ohio St., 419.

      Gideon C. Wilson, county solicitor; Otway J. Cos-grave and Oliver B. Jones, assistant county solicitors of Hamilton county, Ohio, for defendant.
    During the half century that has elapsed since the adoption of our present constitution, no law has been passed establishing a general court throughout the whole state in addition to those named by the constitution. But the power to establish other courts has been continuously construed by the legislature and by the courts to authorize the establishment of numerous local courts, which have been provided to supply local needs.
    The,superior court of Cincinnati as it existed prior to the constitution of 1851, having ended its existence in 1853, a new court of the same name was created April 7, 1854, and has since existed to the present time. It is provided by chapter 4, title 4, part 1, of the Revised Statutes (sections 482-503). Its territorial limits are confined to the city of Cincinnati, and the judges are elected by the electors of that municipality, the city and county being named by name in the act providing for the court. It has a large concurrent civil jurisdiction with the court of common pleas, cases going on error from the special to the general term, and from the general term on error direct to the Supreme Court.
    By the act of April 18, 1893, 90 O. L., 191, the general term of this court was abolished, and it was provided that appeal and error should lie from its special term to the circuit court. This act was abolished May 16, 1894, 91 O. L., 276, and the general term was restored, and it was further provided that in this county a judge of the common pleas court should have the power to sit in general term in the place of any judge of the superior court who was disqualified by reason of having heard the ease at nisi prius.

    These acts have not at any time withdrawn any jurisdiction from the common pleas court, but it might be claimed, as in the case at bar, that they changed the jurisdiction of the circuit court in 1893 and 1894. The same objection made by relator to the court of insolvency would apply with equal force to the superior court of Cincinnati, especially since 1883, when the language of section 1, article 4, was changed. But it can not be claimed that any of these acts with reference to this superior court are invalid, for the judgments of its general term and of the circuit court on error or appeal from the special term have been affirmed on numerous occasions by the Supreme Court. Indiana v. Milliken 7 Ohio St., 383.
    A superior court was also established for Montgomery county in 1856, for Franklin county in 1857, and for Greene county at an early day. These courts were in existence for some time, and their constitutionality was never questioned. The laws creating them have now all been repealed.
    Those acts are a legislative interpretation oí the constitution at a time when the whole subject was fresh in the minds of the people.
    The only limitation specified in section 1, article 4, as to “other courts,” which it authorizes the general assembly to establish, is that they should be “inferior to the Supreme Court.” And the use of the words “from time to time” clearly indicate that local courts were thus provided for, showing that one local court after another might he provided by law from time to time, as the needs for them successively arose. Section 10, article 4.
    This section, it will be observed, applies only to judges other than those named in the constitution; that is, it appears only to judges of courts created by the general assembly.
    • The judges of the courts established by the constitution are elected under the provisions of other sections; the judges of the Supreme Court by the electors of the state at large (section 2); the judges of the common pleas court by the electors of the respective subdivision of the common pleas districts (section 3); the judges of the circuit court by the electors of each circuit (section 6); the judges of the probate court by the voters of the county (section 7); and the justices of the peace by the electors of each township (section 9).
    A distinction has been drawn between the other courts authorized to be established by the general assembly under this section and’those created by the constitution in the case of State v. Wright, 7 Ohio St., 333. Flinn had been elected as judge of the criminal court of Cincinnati for a term of five years from February, 1852. The legislature afterwards abolished that court, by repealing the act under which it was created. Flinn brought suit in mandamus for the payment of his salary, claiming, under section 15, article 4, that his office could not be abolished. The court held that the constitution did not limit the power of the legislature to abolish courts created by it, nor to vacate the office of a judge of such court. This court was a local court of criminal jurisdiction for Hamilton county, and was provided by the act printed in 50 O. L., 90. The Supreme Court raised no question as to the constitutionality of such criminal court, but held that while a two-thirds vote was required to establish such a court, a majority vote was sufficient to abolish it. The fifth section of said act gave the criminal court full and complete jurisdiction of all crimes, offenses and misdemeanors such as the common pleas court had in other counties of the state in like cases, and provided that the court of common pleas in Hamilton county should have no concurrent jurisdiction of such cases with said criminal court. Kelley v. State, 6 Ohio St., 269.
    The jurisdiction of the probate court is fixed by section 8, article 4, in which, after enumerating their jurisdiction in probate and testamentary matters, they are given “such other jurisdiction, in any county or counties, as may be provided by law.” Under this section laws have been enacted conferring different jurisdiction both in criminal and civil matters on probate courts of the different counties in the state. Sections 525-1, 6454, 6464, Revised Statutes. The phrase “in any county or counties” has been construed by the Supreme Court as being enabling rather than restrictive language.
    Immediately upon the first creation of an insolvency court in this state, that of Hamilton county, the law was brought under review by the Supreme Court in State v. Archibald, 52 Ohio St., 1.
    This question has again been before the Supreme Court, and has been decided adversely to the position of the relator in Meyer v. Dempsey, 62 Ohio St., 637. There the act of April 25, 1898, 93 O. L., 669, was rightly held to be obnoxious to section 26, article 2, for the reason that its effect was to impair the jurisdiction of the court of common pleas in Hamilton county, and to thus affect the uniformity of the jurisdiction of that court throughout the state, and the rule laid down in Kelley v. State, 6 Ohio St., 269, was followed. This case only went to the jurisdiction of the court, the court holding that entire act, including the repealing section, to be unconstitutional, thus reinstating the old law attempted to be repealed thereby and recognizing the insolvency court to be a constitutional court.
    Thus the Hamilton county insolvency court law has been twice before the Supreme Court, and has been sustained each time. The law under consideration in this case is practically the same as the Hamilton county law, having been modeled upon it, and passed at the succeeding session of the general assembly.
    The language of this act provides a court of insolvency “in counties contaihing a city of the second grade of the first class.” Such a classification of counties has been reprobated by the Supreme Court (59 Ohio St., 210). Our contention is, that the act being a local one, might as ' well have named Cuyahoga county in terms as-to describe it in the manner in which it was described. The subject matter of the act, however, is, as we have attempted to show, not general in its nature, but local, providing a court for the local needs of a particular district created by the act, to-wit, Cuyahoga county, and any other county that in the future might contain a city of the second grade of the first class within its borders would be able to avail itself of the privileges of such a court.
    The objections to the constitutionality of laws under section 26, article 2, have been so often before the courts of late, that it is not necessary to review the decisions. But even if it should be decided that there 'is a conflict in terms between' that section and sections 1 and 15 of article 4, there is no reason why the former should dominate the latter, but on the contrary, under the rules of construction the specific authority granted by the latter sections to establish courts would prevail. Sutherland on Statutory Construction, section 217.
    The same rules obtain in ‘ the construction of the constitution as of statutes. The constitution must be construed to harmonize with itself and give effect to every provision. Hill v. Higdon, 5 Ohio St., 243; Wilcox v. Nolze, 34 Ohio St., 520; Lehman v. McBride, 15 Ohio St., 573; Cass v. Dillon, 2 Ohio St., 607.
    In no case that we have been able to find has the provision in section 26, article 2, been applied to an act establishing a court. Nor does that section require that all enactments of the legislature shall be of a general nature. Nor does it prohibit the passage of appropriate local laws. State v. Covington, 29 Ohio St., 102.
    A law is not necessarily of a general' nature because it is upon a ¡general subject or because the result might have been reached by a general law, so the formation of a special school district has been held valid. State v. Shearer, 46 Ohio St., 275.
    The matter of jury trial is clearly of a general nature, and yet special methods of securing juries, differing in different counties, are sustained. McGill v. State, 34 Ohio St., 228; State v. Kendle, 52 Ohio St., 346; Silberman v. Hay, 59 Ohio St., 582.
    The amount of compensation for county or local officers has been held to be local in its nature.
      Cricket v. State, 18 Ohio St., 9; State v. Judges, 21 Ohio St., 1; Hart v. Murray, 48 Ohio St., 605; Pearson v. Stephens, 56 Ohio St., 126.
    The act requiring screens for protection of electric street car motormen, making no provision for cable roads or drivers of horse cars or other vehicles was held constitutional in State v. Nelson, 52 Ohio St., 88; Adler v. Whitbeck, 44 Ohio St., 539; Senior v. Ratterman, 44 Ohio St., 661; State v. Turnpike Co., 37 Ohio St., 481.
    The Supreme Court of Kansas has sustained an act creating two city courts in Kansas city township, Wyandotte county, Kansas, and defining the jurisdiction thereof, and the powers and duties of the officers thereof, and limiting the jurisdiction of the justices of the peace in said-township. Greer, In re., 58 Kan., 268, and a similar act creating a city court in the city of Topeka, 61 Kan., 94.
    And the United States circuit court, in considering the constitutionality of the Kansas court of visitation in Western Union Tel. Co. v. Myatt, 98 Fed. Rep., section 335, recognize the power to create such a' court for the exercise of judicial but not legislative or administrative functions.
    In Minnesota, with a similar constitutional provision as to the establishment of courts inferior to the Supreme Court (article 6, section 1), and more stringent and extended provisions prohibiting special legislation (article 3, sections 33 and 34), the Supreme Court has sustained the establishment of a municipal court of Minneapolis, which restricted the jurisdiction of justices of the peace, in Bruke v. Railway Co., 35 Minn., 172.
   Williams, J.

The cause of the relator is placed in the argument entirely upon the ground that the first of the statutes referred to in the statement of the case is in conflict with section 26 of article 2 of the constitution; and that statute, which provides for the creation of the court of insolvency, being invalid, as stated, the invalidity of the other two statutes which attempt to confer certain jurisdiction on that court, it is claimed must follow. But, if the first act be held constitutional, then counsel say that “any reasoning leading up to that conclusion would equally justify the conferring of particular jurisdiction upon a court created thereby so long as the jurisdiction thus conferred was not so exclusive as to be an invasion of the concurrent jurisdiction of the court of common pleas in the county where the court exists, and we perceive no reason of either law or policy which would require the insolvency court to be curtailed of any jurisdiction mentioned in the statutes assailed in the various causes of action in the petition.”

Accepting that view, it is unnecessary to enlarge the report of the case beyond a consideration of the particular question so presented. No specific provision of the statute is relied on.more than any other as raising the alleged conflict with the constitution. The objection made is a general one, namely, that being local in its operation, it undertakes to provide for the establishment of a court, which, it is claimed, is a subject of a general nature, and upon which legislation is forbidden that is not available and operative alike in all parts of the state. The inquiry here may be further reduced by the concession that the statute is limited in its operation to a single county. That section 26 of article 2 of the constitution imposes a limitation upon the legislative power conferred by section 1 of that article, is not disputed. But, by section T of article 4, there is a special grant of legislative power upon a particular subject, which itself prescribes the rule for the government of the legislative body in the exercise of that power. It provides that: “The judicial power of the state is vested in a Supreme Court, circuit courts, courts of common pleas, courts of probate, justices of the peace, and such other courts inferior to the Supreme Court, as the general assembly may from time to time establish.” The power is here undoubtedly granted to the general assembly to create courts other than those enumerated in the section; and the material inquiry is, what other courts may be so created? The answer is found in the language of the section, which is, “such” other courts “as the general assembly may from time to time establish.” That language vests in that body full power to determine what other courts it will establish, local, if deemed proper, either for separate counties or districts, and to define their jurisdiction and powers. The only limitation placed upon the exercise of that power is that the courts so established shall be inferior to the Supreme Court, subject, of course, to the further qualification that no legislation can alter the judicial system established by the constitution, nor interfere with the courts designated by that instrument as the recipients of the judicial power. Apparently there could, have been but one purpose in making this special grant of legislative power, and that was to enable the general assembly to meet, the public needs for additional courts, as they might arise in different parts of the state. It is hardly probable that it was considered or contemplated that the same necessities in that respect would arise at the same time in all parts of the state. Hence, the power was given to establish these additional courts from time to time, as in the opinion of the legislative body the public exigencies should appear to render necessary or proper. That such was the scope of the authority granted by this section prior to its amendment in 1883, was held in Steamboat v. Milliken, 7 Ohio St., 383, 387, and is not controverted by counsel. The original section reads as follows: “The judicial power of the state is vested in a Supreme Court, in district courts, courts of common pleas, courts of probate, justices of the peace, and such other courts, inferior to the Supreme Court, in one or more counties, as the general assembly may, from time to time, establish.” In the amended section circuit courts were substituted for district courts, and the words “in one or more counties,” were omitted. That omission, it is urged, deprived the legislature of the power theretofore possessed by it to create any local court. The conclusion doés not follow.. As has already been noticed, the power to create “such” courts inferior to the Supreme Court, as the general assembly may from time to time establish, includes the necessary power to determine what courts of that kind shall be so established. That power was not enlarged by the presence in the original section, of the words “in one or more counties.” It had been claimed prior to the amendment that those words operated as a restraint on the power of the legislature to determine the character of the courts that could be established, to the extent, at least, that they should be coextensive in jurisdiction with the territorial boundaries of a county. Steamboat v. Milliken, supra. That claim was not sustained. And, since the words neither enlarge nor circumscribe the discretionary power of the general assembly, their retention in the amendment would accomplish no purpose.

The question here determined was not raised in State v. Archibald, 52 Ohio St., 1. For that reason that case cannot be regarded as an authority in the present case. The statute there passed upon and sustained related to the court of insolvency of Hamilton county, and the objection made to it was that it was in conflict with section 8 of article 4 of the constitution. Similar provisions contained in the statutes involved in the case now before us are assailed on the same ground; and upon the question raised in the relator’s petition with respect to those provisions the former case is applicable by analogy, in so far as the objections made to them are the same as those determined in that case.

It may be proper to correct here a misapprehension which appears to have, arisen in regard to the unreported case of Meyer v. Dempsey, 62 Ohio St., 637. It was not decided in that case that the act establishing the court of insolvency of Hamilton county was in violation of section 26 of article 2 of the constitution. The act there in question (93 O. L., 669) was an amendment to the act creating that, court, and it attempted to confer exclusive jurisdiction on that court of various matters within the jurisdiction of the court of common pleas. It was that feature of the statute, which, it was held, rendered it unconstitutional, leaving the original act creating the court, unaffected.

Demurrer sustained and^petition dismissed.

Minshall, C. J., Burket and Davis, JJ., concur. Shauck, J., dissents.


source: Caselaw Access Project

author: Minshall, C. J.

license: Public Domain

text:
    Carr, Guardian, v. Hull et al.

      Land of intestate descend to his heirs — Subject to payment 0/ his debts — Land cannot be sold to pay costs of administration alone.

    The lands of an intestate descend to Ms heirs, subject, however, to the payment of Ms debts and the year’s allowance to the widow and minor children, in case the personalty is insufficient, and charges of administration incident to a sale of the land. They cannot be sold .to pay the costs of administration alone.
    (Decided December 3, 1901.)
    Error to the Circuit Court of Summit county. '

      Nathan Morse, for plaintiff in error, cited the following authorities:

      Daris v. Daris, 11 Ohio St., 386; Sayler v. Simpson, 45 Ohio St., 141; Section 6005, Revised Statutes; Wehrle v. Wehrle, 39 Ohio St., 365; Catlin v. Huestis, 5 Circ. Dec., 23; 11 C. C. R., 120; Sheldon v. Newton, 3 Ohio St., 494; Douglas v. Massie, 16 Ohio, 271; Overturf v. Dugan, 29 Ohio St., 230; Farrar v. Dean, 24 Mo., 16; 1 Woerner’s Am. Law of Admr., 438; Holman v. Burnett, 44 Miss., 322; Fitzgerald v. Glancey, 49 Ill., 465; Walker v. Diehl, 79 Ill., 473; McCall v. Pixley, 48 Ohio St., 379; Wood v. Butler, 23 Ohio St., 520.

      Grant & Sieber, for defendants in error, cited the following authorities:

      Slagle v. Entrekin, 44 Ohio St., 637; Welsh v. Perkins, 8 Ohio, 52; Dunning v. Driver, 25 Ind., 269; Abila v. Burnett, 33 Cal., 658; Griffith v. Bank, 6 Gill and J., 424; Stevens v. Burgess, 61 Me., 89; Ackerson v. Orchard, 7 Wash., 377; Smith v. Dutton, 16 Me., 308; Nowell v. Nowell, 8 Me., 220; Long
      v. Oxford, 108 N. Car., 280; Matter of Courts, 87 Cal., 480; Falley v. Gribling, 128 Ind., 110; 26 N. E. Rep., 794.
   Minshall, C. J.

The question in this case concerns the power of an administrator to cause the lands of a decedent to be sold to pay debts of the decedent, where the petition fails to aver, and no evidence is offered that there are any such debts. Edwin Hull, a resident of Summit county, died in 1892 intestate. He left seven children, one of w,hom, a daughter, having intermarried, subsequently died, leaving a minor child, and Gideon Carr was appointed its guardian. He also left a farm worth about $4,-000, and some personalty. No administration was taken out. upon his estate until July 15, 1897, when one Harrison, a stranger to the family, was appointed administrator by the probate court. On October 2, following, he filed a petition in the probate court of the county, asking for an order of sale of the lands to pay debts. There is no averment in the petition that the deceased left any debts of his own that had not been paid; and the answer of the guardian of the minor that the deceased left no debts, is not denied by a reply. It contained the averment, however, that “the charges of administration of the estate will amount to about $400,” and that the personal assets are $39 and some cents. A demurrer to the petition was overruled, and an answer filed by the guardian averring there were no debts of the decedent to be paid. A hearing was had and an order made for the sale of the land described in the petition. An appeal was taken to the common pleas. Pending the appeal in that court, Harrison died, and one Frederick, also a stranger, was appointed administrator de bonis non, and the suit revived in his name. A hearing was had and a like order made for the sale of the land. The guardian took a bill of exceptions, which was made a part of the record. It contains all the evidence offered at the trial. There was no amendment of the petition in the common pleas, nor was it shown that the deceased left any debts of his own to be paid, nor was there any offer to so show. . On error the judgment was affirmed by the circuit court.

It is claimed, in the first instance, that under section 6005, Revised Statutes, the probate court had no power to. appoint a stranger as administrator, there being no creditors, without a showing that there are personal assets to the amount of $100, which was not done on the appointment of Harrison, the amount as stated being but $39.90. And it is further claimed that there was no authority under section 6018, Revised Statutes, for the appointment of an administrator cle bonis non, as in his application he stated that there were no assets, and did not aver that there were any debts to be paid. We may say that, from the record, it seems quite doubtful on the showing made, whether the court had authority to appoint an administrator in the first instance, or to appoint a successor on his death. But be that as it may, we think their appointment cannot be questioned in a collateral proceeding. There should have been some direct proceeding for the purpose: Here it is collateral to the proceeding, being one to sell lands; and it is contrary to the policy of our law to permit a question of the kind to be raised in a collateral proceeding.

We come then to the power of the court, on the showing made, to order the sale of a decedent’s lands, when it is not averred in the petition, nor shown, that the decedent left debts of his own unpaid; and the only reason assigned is that the sale may be made to pay costs of administration.

In this state, as in most of the states of the Union where the principles of the common law prevail, the personalty of a decedent who dies intestate, passes to his administrator, who takes it in trust for the payment of the debts of the decedent and the distribution of the remainder among his next of kin; whilst his realty passes directly to his heirs as an estate of inheritance, subject, however, to a liability for the payment of his debts, if the personalty proves insufficient. But as the administrator has no title to the lands, the liability can only be enforced by a proper proceeding instituted by him for a sale of the lands, or so much thereof as may be necessary, for the express purpose of paying debts of the decedent. The suit cannot be instituted for any other purpose. Wood, Adm’r, v. Butler, 23 Ohio St., 520. The exercise of the power is regulated by statute, and, being special in its character, must be strictly pursued. Section 6136, Revised Statutes, provides that—

“As soon as an administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased, with the allowance to the widow and children for their support, twelve months, and charges of administration of the estate, he shall apply to the probate court or the court of common pleas for authority to sell the real estate of the deceased.”

It is further provided in section 6141, that—

“The petition shall, in all cases, set forth the amount of debts due from the deceased, as nearly as they can be ascertained, and the amount of the charges of administration, the value of the personal estate and effects, and a description of the real estate, and value thereof, if appraised.”

It is argued that section 6136 confers power to sell for the payment of the charges of administration of the estate only. This we think is erroneous.' The principal fact that must exist, in any case, to confer the power, is the existence of debts of the deceased, and that it is necessary to sell to pay those debts with the year’s allowance to the widow and minor children, which is classed with the debts of the deceased, to which is added, as an incident, “charges of administration of the. estate.” This clause is not to be taken in a distributive sense, but collectively with cne, or both, of the other grounds for making a sale. The proper construction is that sufficient of the lands may be sold to pay charges of administration, where it is necessary to make a sale for the payment of the debts of the deceased, or the year’s allowance. The debts or year’s allowance, is the principal fact on which the power may be invoked, to which charges of administration, as we have said, are incident. The charges of administration here referred to, relate to the costs of the proceeding, attorneys’ fees and administrator’s commissions. This is the first time it seems that this precise question has been presented to this court; but the contraction we have placed on the statute, is not only required by its language and the policy of our laws whereby the realty of a decedent who dies intestate, descends to his heirs subject only to a liability for the debts of the decedent, where the personalty is insufficient, but it is in harmony with the decisions elsewhere in states having laws for the settlement of estates of deceased persons, similar to our own. Proceedings to sell lands by the administrator are construed strictly, and made to depend upon the existence of unpaid debts of the deceased after exhausting the personalty; and power to sell to pay costs of administration only, is denied. Mr. Woerner, an author who has devoted much learning and ability to the subject, says: “The petition as .appears from the preceding section, must aver the existence of debts remaining unpaid; and it is self-evident that the court must be satisfied in a lawful way, of their existence, before there can be an order of sale of real estate; the court should hear proof and this should appear of record.” And further : “The debts so proved to exist must be such as were contracted by the deceased himself. No sale will be ordered to pay expenses of administration alone, or any debts incurred by the executor or administrator, after the death of the testator or intestate, except funeral expenses.” He then enumerates the states in which it has been so held, and adds: “No decision has come to the notice of the writer from any of the states in which the sale of real estate for the payment of the expenses of administration alone is held valid, except an intimation in a very briefly considered case in Indiana, which, however, was subsequently affirmed in a case fully argued, a dictum in New Jersey, and several cases in California, where there is a statutory provision to that effect, besides some other states in which the realty goes to the administrator like personalty.” Am. Law of Administration, section 469.

The text of the author will be found supported by the following cases: Walworth v. Abel, 52 Pa. St., 370; Farrar v. Dean, 24 Mo., 16; Fitch v. Whitbeck, 2 Barb. Ch., 161; Cornwall, In re., Tuck, 250; Fitzgerald v. Glancy, 49 Ill., 465; Walker v. Diehl, 79 Ill., 473; Dean v. Dean, 2 Mass.; Drinkwater v. Drinkwater, 4 Mass., 354; Mays v. Rogers, 52 Ark., 320; Moore v. Ware, 51 Miss., 206. See also Kinkead’s Probate Law & Practice, section 393, and Rorer on Judicial Sales, section 268. The case, of Falley v. Gribling, 128 Ind., 110, cited by counsel for defendant in error, is the case referred to by Mr. Woerner. It does not seem to be sustained by reason or authority and we see no reason for following it.

Counsel for the defendant in error also cite and rely with much confidence upon the case of Welsh v. Perkins, 8 Ohio, 52, as sustaining their contention. It does not, as we think, do so. In this case the administrator borrowed money to pay the taxes that had accrued on the lands of the decedent in his lifetime. These taxes were a charge upon the personalty, and it was the duty of the administrator to pay them. He borrowed money wherewith he paid the taxes, and a petition to sell the lands was sustained. By paying the taxes he was subrogated to the place of the state as a creditor, and so had a right to sell for his reimbursement. It was a sale in fact to pay debts of the decedent.

In Fitzgerald v. Glancy, supra, which was a proceeding to pay debts, but where none of the deceased, and none whatever but costs of administration, were shown to exist, Chief Justice Breese severely criticised the proceeding as follows: “The objection to this proceeding is fundamental, and stands out in bold and startling relief, and if allowed, would subject the real estate of intestates dying free from debt, to the cupidity of unconscientious administrators whose designs might be to appropriate it to themselves, to the injury of the heirs at law. The policy of our law most clearly is, that the real estate of decedents shall not be sold in this mode, except to pay debts due and owing at the death of the decedent.” He then adds: “This is the first case, within our knowledge, where debts have been created by an administrator after the death of his intestate, and -allowed by a court as claims against his. estate, and an order granted to sell his Jands to pay them. They were not such claims, and cannot, by any legal alchemy, be made such, and not being such, the order to sell this lot to pay them, was erroneous and void. It has no legal basis to rest upon, and none whatever for the application in the first instance.”

Judgment of the circuit court and of the court of common pleas reversed, and petition dismissed.

Williams, Burket, Spear, Davis and Shauck, JJ., concur.


author: By the Court:

text:
    The City of Toledo v. Converse et al.

      Petition in error — Filed four months from date of judgment— May he amended,, when — Bo as to show sum involved is more than three hundred dollars.

    A petition in error -which was filed within four months from the date of the judgment or final , order complained of, may he amended after the expiration of four months from the date of the said judgment or final order, so as to show that the sum or value involved in the judgment sought to he reversed, is more than three hundred dollars, exclusive of interest and costs.
    (Decided December 3, 1901.)
    Error to the Circuit Court of Lucas county.
    Motion for leave to amend petition in error.

      M. B. Brailey; O. K. Friedham and G. S. Northup, for plaintiff in error.

      B. S. Holbrook and Hamilton é Kirby, for defendants in error.
   By the Court:

Both the plaintiff and the defendants claim a certain piece of property. The plaintiff brought suit to enjoin the defendants from entering and building upon the disputed ground, and asked that its title be quieted. The defendants answered and also asked to have their title quieted against the plaintiff. The circuit court having decided against the plaintiff on appeal, within four months from the rendition of the judgment complained of a petition in error was filed in this court to reverse the judgment of the circuit court. It does not appear, either in the pleadings or record of the case that the case is one which involves more than three hundred dollars exclusive of interest and costs. A motion having been made by the defendants to dismiss the petition in error for want of jurisdiction, and more than four months having elapsed since the rendition of the judgment which is sought to be reversed, the plaintiff now moves for leave to amend its petition in error, and presents with the motion an amendment, duly verified, setting forth that the value of the real estate, the title to which is involved in this action, exceeds three hundred dollars, and that in the judgment sought to be reversed in this case is involved, exclusive of interest and costs, the sum or value of more than three hundred dollars. We think that the amendment should be permitted. It comes within the general power of amendment conferred by section 5114 of the Revised Statutes. The amendment differs from the amendments made and proposed in the cases cited for the defendants, in this, that it does not set forth a new and distinct allegation of error, or cause for reversal; but merely supplies a material allegation of fact affecting the jurisdiction of the case, not of the subject matter thereof. Application of this principle was made in Piatt v. Sinton, 35 Ohio St., 282, and Bowen v. Bowen et al., 36 Ohio St., 312.

Motion allowed.

Minshall, O. J., Williams, Spear, Davis and Shauck, JJ., concur.


author: By the Court :

text:
    The Pennsylvania Co. v. Files.

      Statements, made by injured party — To a physician to enable him to testify as expert — Not admissible, when — Statements made to third parties, not physicians incompetent, when— Laws of evidence — Rude governing charge of court as to prospective damages from injury.

    1. Where one who has received , a physical injury from the wrongful act of another, calls upon a physician, not for the purpose of receiving medical aid and treatment, hut for the purpose of enabling the physician to testify, as an expert, in a pending, or proposed, suit, statements made by the party under such circumstances in regard to his condition, are not admissible in evidence; and, for a stronger reason, like statements made to third persons, not physicians, under similar circumstances, are incompetent.
    2. Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may he reasonably certain to result from the injury.
    (Decided December 17, 1901.)
    Error to the Circuit Court of Crawford county.

      E. W. Tolerton, for plaintiff in error, cited the following authorities:

      Railway Co. v. Yokes, 12 Circ. Dec. 599; 12 C. C. R. 511; Roche v. Railroad Co., 105 N. Y. 294; Reed v. Railroad Co., 45 N. Y., 574; Winter v. Railroad Co.,

      38 N. W. Rep., 155; Darrigan v. Railroad Co., 52 Conn., 309; Railroad Co. v. Huntley, 38 Mich., 544; Rogers on Expert Testimony, 67; Hardy v. Street Ry. Co., 61 N. W. Rep., 771; Smith v. Milwaukee Builders Exchange, 64 N. W. Rep., 1041; Chapin v. Marlborough, 9 Gray, 244; Morrissey v. Ingraham, 111 Mass., 63; Barber v. Merriman, 11 Allen, 322; Bacon v. Charlton, 7 Cushing, 581; Jones v. President of Portland, 16 L. R. A., 437; Quaife v. Railroad Co., 48 Wis., 513; Pierce on Railroads, 298.

      Beer & Monnette and Finley <& Gallinger, for defendant in error, cited the following authorities :

      Insurance Co. v. Mosley, 75 U. S. (8 Wall.) 397; 1 Greenl. Ev., Sec. 102; 1 Phil. Ev., 183; 1 Taylor Ev., Section 518; Aveson v. Kinnaired, 6 East, 194; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Fay v. Harlan, 128 Mass., 244 (35 Am. Rep., 372); Bennett v. Railroad Co., 13 L. R. A., 465; Williams v. Railway Co., 37 L. R. A., 199; Bothell v. Seattle (City), 17 Wash., 263; 3 Neg. Rep., 300; Burleson v. Reading (Vil.), 110 Mich., 512 (68 N. W. Rep., 294) ; Mulliken v. Corunna, 110 Mich., 212; Railroad Co. v. Kennelly, 170 Ill., 508 (48 N. E. Rep., 996); Brown v. Mt. Holly, 69 Vt., 364; Bagley v. Mason, 69 Vt., 175; State v. Hutchinson, 95 Ia., 566; Roche v. Railroad Co., 105 N. Y., 294; Hancock County v. Leggett, 116 Ind., 546; Railway Co. v. Herrick, 49 Ohio St., 25; Kugler v. Wiseman, 20 Ohio, 361; Darnall v. Bennett, 98 Ia., 410; Combs v. New Albany Rail Mill Co., 146 Ind., 688; Nagle v. Fulmer, 98 Ia., 585; Jones on Ev., Section 352; Wetmore v. Mell, 1 Ohio St., 26; Howe v. Howe, 99 Mass., 88; State v. King, 64 Mo., 591; Perkins v. Railroad Co., 44 N. H. 223; Knowlton v. Clark, 25 Ind., 395; Keerney v. Farrell, 28 Conn., 317; Roach v. Zearing, 59 Pa. St., 74; Railroad Co. v. Johns, 36 Kans., 769; Hewitt v. Eisenbart, 36 Neb., 794; Insurance Co. v. Hillmon, 145 U. S. 285; Quaife v. Railway Co., 33 Am. Rep., 828n; Fleming v. Springfield, 154 Mass., 520; Commonwealth v. Leach, 156 Mass., 99; Railway Co. v. Stoner, 51 Fed. Rep., 649; Railway Co. v. Novak, 61 Fed. Rep., 573; Railway Co. v. Newell, 104 Ind., 264; 1 Greenleaf’s Ev., 102; Railway Co. v. Smith, 76 Ga., 209 (2 Am. St. Rep., 31 and note) ; Wilson v. Barkalow, 11 Ohio St., 475; Buddington v. Shearer, 22 Pick., 427; Ellis v. Short, 21 Pick., 142; Taylor v. Boggs, 20 Ohio St., 516; Hamilton v. Theon, 97 Ia., 737 (66 N. W. Rep., 166); Thayer v. Luce, 22 Ohio St., 62; Fuller v. Coats, 18 Ohio St., 343; Railroad v. Porter, 32 Ohio St., 328; Searles v. State, 3 Circ. Dec., 478; 6 C. C. R., 331; Cannon v. McGrew, 46 Pac. Rep., 463; Insurance Co. v. Goodin, 10 Ohio St., 557; Scovern v. State, 6 Ohio St., 288; Hollister v. Reznor, 9 Ohio St., 1; Banning v. Banning, 12 Ohio St., 437; Way v. Langley, 15 Ohio St., 392; Allen v. Parish, 3 Ohio, 107; Earl v. Shoulder, 6 Ohio, 409; Curtis v. Railway Co., 18 N. Y., 534; Ransom v. Railway Co., 15 N. Y., 415; Spicer v. Railway Co., 29 Wis., 580; Hunt v. Hoyt, 20 Ill., 544; Railway Co. v. Johnston, 66 Ga., 259.
   By the Court :

The action below was commenced by Files, a passenger on a train of the Lake Erie and Western Railway Company, to recover damages for injuries sustained by him in a collision between the train he was on, and a train of the Pennsylvania Company, occurring at a crossing of the two roads, both companies being made defendants. But, as it appeared that the Lake Erie and Western Company was not at fault, the suit was dismissed as to it; and the Pennsylvania Company, admitting its liability, a trial was had to the jury on the* amount of the damages to be recovered. A verdict for $500 was rendered.

The principal error assigned is on the admission of evidence at the trial. The plaintiff introduced as a witness Dr. Bland, who testified as to an examination he had made of the plaintiff before the trial, and as to statements made by the plaintiff at that time, in regard to his suffering from the injury. This was excepted to by the defendant as incompetent, but admitted over its objection. , It appeared that the examination was not made for the purpose of treating the plaintiff, but for the purpose of enabling the physician to testify as an expert at the trial. This evidence, we think, was incompetent. It is.to be distinguished from evidence of a like character, given by a physician called on for treatment. In such case, what the patient may say to his medical adviser as to his condition and how he suffers may be admitted. It is to be presumed in such case, that he states the truth, as it is to his interest that he should do so, and not mislead the physician by false statements as to his condition. He is under a strong .motive in such case to state the truth, and it is on this ground that such evidence is admitted. But where the physician is called on, not for the purpose of treatment, but to enable him to give evidence in a pending, or proposed suit, no such sanction of the truth of what he says exists; on the contrary he is under a strong motive to deceive the physician, and not being under oath, may with impunity, make such statements as he sees fit. What he says to a physician under such circumstances is self-serving in character and should not be admitted. Darrigan v. Railroad Co., 52 Conn., 309; Railroad Co. v. Huntley, 38 Mich., 544; and for a stronger reason, like statements made to third persons, not physicians, under similar circumstances, are incompetent.

Again, the court instructed the jury on the subject of damages, as follows: “You may consider as an element of damage the pain he has suffered, resulting from such injuries, and also such prospective damages, if any, as the jury may believe he has sustained or will sustain.” This, we think, was too broad. The jury in assessing prospective damages should have been confined to such as were reasonably certain to follow from the injury complained of. This precise point seems, from the record, not to have been called to the attention of the court, otherwise than by excepting to what was said. It is possible that had this been done, the court would have made the correction; so that if this were the only error, we might not reverse the judgment.

Reversed and cause remanded for a new trial.

Minshall, C. J., Burket, Spear, Davis . and Shauck, JJ., concur.


author: Shauck, J.

text:
    Wells, Fargo & Co. v. Bell.

      Common carrier■ — Action to recover package lost• in transit— Contract of carriage in bill of lading — Limits liability to fifty dollars unless value disclosed — Petition alleges contract and answer admits contract and loss — Only issue remaining is negligence — Pleading.
    WRen, in an action to recover from a common carrier of merckandise tRe value of a package lost in transit, tke petition sets out as the contract of carriage a Rill of lading containing a stipulation tkat the liability of the carrier skall not exceed fifty dollars unless tRe value of tRe article is disclosed, admits tkat tke value was not disclosed, and alleges tkat tke package was lost tkrougk tke carrier’s negligence, and tke answer alleges tkat tke goods were lost by tke carrier wkile in tke exercise of due care and admits its liability to tke extent of fifty dollars, no issue, except tkat of negligence, is presented for trial.
    (Decided January 21, 1902.)
    Error to the Circuit Court of Hamilton county.
    Bell brought suit m the court of common pleas to recover of Wells, Fargo & Company, a common carrier of merchandise, $499.30, the alleged value of a package of jewelry which had been consigned by Bell to one Pfaffle at Wolf City, Texas, and not delivered. The petition counted upon the bill of lading delivered by the carrier at the time of the receipt of the merchandise for carriage, and alleged that the package was lost by the carrier’s negligence. By its answer the carrier denied that the jewelry was of the value alleged, but admitted that it had undertaken to carry and deliver it as alleged and that it had failed to make delivery. It averred, however, that its failure in that regard was due to the loss of the package while in transit, which loss occurred wholly without its fault. It further alleged that the contract for the carriage of the goods was the contract expressed in the bill of' lading attached to the petition and none other, and that the parties had thereby agreed that as the rate for the carriage of goods was based upon their value, because of the additional hazard incident to the carriage of goods of greater value, and that Bell, desiring the rates fixed for packages of the value of fifty dollars, agreed in consideration of their carriage at that rate that the carrier’s liability should not exceed fifty dollars unless the true value of the goods should be disclosed, and that he refused to state the value of the goods knowing that he thereby avoided a demand for greater charge for carriage. It further alleged that it was wholly without knowledge as to the value of the goods contained in the package and that it entered into said contract containing a stipulation limiting its liability to fifty dollars without knowledge or information that the package was of greater value. It admitted its liability to the extent of fifty dollars and tendered payment of that amount. The reply was a general denial. On the trial evidence was offered to show that the jewelry was of the value of $499.30. It was also admitted that the printed and written bill of lading was the only contract for carriage and that it contained the stipulation following, to-wit: “Wells, Fargo & Company shall not be held liable * * * for an amount exceeding fifty dollars on any shipment unless its true value is herein stated.” It also appeared that the blanks in the bill of lading were filled by an agent of the shipper in a book of such bills kept by him and this bill was torn from such book, and in his presence, and contemporaneously with the delivery of the package, the agent of the carrier stamped upon the bill “Value asked and not given,” thereupon delivering the bill to him, and that the value of the package was not communicated to the carrier. Evidence was offered by the carrier tending to show that the package was lost in a train robbery and without its fault. And by the shipper tending to show that the loss occurred through the- carrier’s negligence.
    The court thereupon instructed the jury that the carrier could not make a valid stipulation for its exemption from liability on account of a Loss occurring through its negligence. It further instructed them, that the delivery of the package not having been prevented by the act of God or the public enemy, the carrier should be held liable for the value of the package unless the jury should find that the loss did not occur through its negligence and that there was in the contract of shipment a stipulation limiting its liability on account of a loss occurring otherwise. The court then instructed the jury at length as to the elements of such a contract and as to the burden of proof in establishing it. The verdict limited the recovery to the amount for which the carrier admitted its liability. A motion for a new trial was overruled and a judgment was rendered in accordance with the verdict.
    On a petition in error by Bell, the consignor, that judgment was reversed by the circuit court for the following reasons as stated in its journal: “Because the court substantially charged that the plaintiff below, by the introduction in evidence of the receipt given to the plaintiff by the defendant, which contained a clause stating that the liability of the carrier was limited to fifty dollars in case of loss, by having the said paper in his possession and filling out the blanks thereof with the name of the consignor and consignee and presenting the same to the agent of the defendant for his signature at the time of the delivery by plaintiff to defendant of said package, which was duly signed, and by the fact that in his petition he included the instrument and made it a part of the petition, created the presumption that he assented to the instrument, and that the burden of proof, which continued throughout the case upon the defendant express company, to show7 a valid limitation of its liability, shifted and the burden of proof was then upon the plaintiff to show7 by a preponderance of the evidence that the plaintiff did not assent to the conditions of the instrument.
    “That the same w7as duly excepted to and duly and sufficiently assigned for error in the petition in error, and that said record and proceedings are in all other respects free from error: For this error the judgment of the court of common pleas is reversed and the case remanded for a new7 trial.”

      Harmon, Oolston, Goldsmith <# Hoadly, for plaintiff in error, cited the following' authorities:

      Railroad Co. v. Barrett, 36 Ohio St., 449; Jones on Evidence, Section 174; 5 Am. & Eng. Ency. of Law (2 ed.), pages 31 to 40; Heinemann v. Head, 62 N. Y., 455; Silvus v. State, 22 Ohio St., 90; Railroad v. Roos, 6 Circ. Dec., 333; 9 C. C. R., 201; Durgin v. Express Co., 66 N. H., 277; Lawrence v. Railroad Co., 36 Conn., 63; Railroad Co. v. Brumley, 33 Tenn., 401; Ryan v. Railroad Co., 65 Texas, 13; Boorman v. Express Co., 21 Wis., 154; Express Co. v. Guthrie, 9 Bush (Ky.), 78; Gaines v. Insurance Co., 28 Ohio St., 418; Railroad Co. v. La Tourette, 1 Circ. Dec., 486; 2 C. C. R., 279; Railroad Co. v. Pontius, 19 Ohio St., 221; Muller v. Railroad Co., 2 Cin. Sup. Ct. Rep., 280; Rice v. Dwight Mfg. Co., 2 Cush., 80; Railroad Co. v. Seiberling Co., 4 Circ. Dec., 210; 8 C. C. R., 593; Gibson v. Express Co., 1 Hun., 387.

      Gobb & Howard, for defendant in error, cited the following authorities:

      McLaughlin v. Railroad Co., 61 Ohio St., 279; 43 W. L. B., 47; Minnear v. Holloway, 56 Ohio St., 148; Railroad Co. v. Barrett, 36 Ohio St., 453; Graham v. Davis, 4 Ohio St., 362; Davidson v. Graham, 2 Ohio St., 131; Express Co. v. Schwab, 53 Ohio St., 659; Davis v. Hines, 6 Ohio St., 473; Railroad Co. v. Fitzpatrick, 42 Ohio St., 318.
   Shauck, J.

It does not seem necessary to inquire whether in stating the reason of its judgment of reversal the circuit court correctly repeated the substance of the instruction which the trial court gave to the jury upon the point stated. It is admitted that when he instructed the jury that a common carrier cannot limit its liability on account of.goods lost by its negligence, he satisfied the requirement of the law of this state in that particular. In view of tlaat instruction the verdict necessarily implied a finding by the jury that the goods were not lost by reason of the carrier’s negligence.

Attention to the record will show that after that finding there was no question for the jury to determine; and it will follow1- that if there wms error in another portion of the charge it could not be prejudicial to the shipper. The bill of lading contained the stipulation that the carrier should not be. liable for an amount exceeding fifty dollars unless the true value of the goods was therein stated. The value was not therein stated. In the presence of the shipper, and contemporaneously with the delivery of the goods for carriage, the agent of the carrier stamped upon the bill the words “Value asked and not given.” The plaintiff attached this bill of lading to his petition and counted upon it as the contract for carriage. IT is petition would therefore have shown a right to recover only fifty dollars but for the allegation that the goods were lost through the negligence of the carrier. That allegation, its denial by the carrier and the conflicting evidence upon the subject of negligence raised the only question with respect to which either party was entitled to an instruction. That the bill of lading containing the' limitation upon the carrier’s liability was the contract for carriage was shown by the petition. It was alleged in the answer. Upon the trial it was proved by the undisputed testimony of both parties. By that time, certainly, it should have been régarded as established. Under instructions Admitted to have been as favorable to the shipper as he could request, the jury were directed to find whether the loss of the goods was from a cause which would render the stipulation ineffectual. When the trial judge passed from that issue and gave the jury instructions to guide them in determining what was the contract for carriage he merely gave to the shipper an undeserved opportunity to secure a verdict. This conclusion needs no support from the facts clearly shown that the shipper knew that the stipulation limiting the carrier’s liability was in the contract and that he did not disclose the value of the goods because he knew that a higher charge for carriage would be made in view of the increased risk. The result of the trial in the court of common pleas renders it immaterial whether in view of the shipper’s concealment of the value of the goods, it was proper to give the unconditional instruction that the carrier was liable for the full value of the goods if they were lost by its negligence.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Mtnsi-iall, C. J., Burket, Spear and Davis, JJ., concur.


author: Davis, J. Minshall, C. J.

text:
    The New York, Chicago & St. Louis Railroad Company v. Schaffer.

      Discharged servant cannot require statement of his service■ — - Whether satisfactory or not — From his master — Although unable to obtain employment because of such refusal by employer — Railroad company may lawfully refuse to continue in its employ one engaged in strike, when.

      1. A master is under no legal obligation to give to his discharged servant a statement of his service and whether or not it was satisfactory; and a discharged railroad employe cannot maintain an action for damages against the company which discharged him for refusal to furnish him with a clearance or statement of the record of his service, although he may have been unable to obtain other employment in consequence of such refusal by the company.
    2. It is the right of every person, natural or artificial, to employ or refuse to employ in his business whomsoever he may wish, and he cannot be called upon to answer for his judgment in that regard by the public or individuals, nor can the motives which prompt his action be considered. A railroad company may lawfully refuse to continue in its employ a person who has engaged in a strike affecting its interests, or who.has shown himself to be negligent, incompetent, inefficient or dishonest.
    (Decided January 21, 1902.)
    Error to the Circuit Court of Huron county.
    In the second cause of action the plaintiff in substance alleges that prior to the first day of January, 1895, he was in the employ of the defendant company, performing the work of a brakeman at the rate of sixty dollars per month, qnd that on or about the latter part of December, 1894, while in the employ of the defendant company he applied for and was granted a leave of absence for about thirty days, and that when he reported for work again on or about the first day of February, 1895, he was informed by the defendant company that he had been discharged; and he avers that he.was discharged from the service of the defendant without any just cause whatever. He says that during the year 1894 there was on many of the railroads in the United States a strike which is commonly known as the A. R. U. strike, and that at the time of this strike, that is, in the ’ summer of 1894, this plaintiff was working for the defendant company as a brakeman in the yards at Bellevue, and took no part in the strike; that he continued to work for the defendant up to the latter part of December, 1894, when he was granted a leave of absence by the defendant. He says that prior to the 6th of August, 1894, the defendant entered into a conspiracy, agreement and understanding with certain other railroad companies having lines of road running into the city of Chicago, and 'also other railroad companies the names of which are unknown to this plaintiff, that they would furnish to each other information as to all of the employes who had commited offenses, or were charged with having committed offenses, or who had quit work during the said strike, and also as .to all their employes who were members of the American Railway Union, and that said companies entered into the further conspiracy, agreement and understanding that such employes of any and all of said companies would not be employed by any of the said companies without the release and consent from the railroad company by which the employe was last employed, commonly called by railroad men a clearance. He avers that the object and purpose of such alleged conspiracy and agreement was to maliciously and willfully interfere with such employes who had previously terminated their employment with or been discharged from the employment of either of said companies.
    Plaintiff further says that he had worked for the defendant company prior to the time of his last employment as above stated, and that when he left that employment he was given a certificate or a statement of his service for the company. There are other allegations in the petition with regard to a custom of the defendant to grant such letters, but these are omitted for the reason that they are not material in the present contention. Plaintiff says that since the conspiracy aforesaid it is impossible for anyone to secure employment unless he first presents the consent of the company for whom he last worked, or a clearance card showing that the applicant was in no way connécted with the said strike; that he has repeatedly asked the officers of said company for such letters or clearance or consent, and that the company has failed and refused to furnish him therewith, and that at the time he so requested the defendant', the defendant promised and agreed to send his record to anyone employing,- or desiring to employ, the defendant, but the plaintiff says that the defendant has failed and refused to furnish the record; that since his discharge he has made application for employment to various railroad companies which have refused to consider his application unless he would first bring the consent of the defendant or a clearance as above mentioned. He further says that the defendant willfully and maliciously and in pursuance of said conspiracy, agreement and understanding, and with intent willfully and maliciously to prevent the plaintiff from securing employ» ment, refused to give the plaintiff the said letters, consent or clearance that would enable him to secure employment in the railroad business, and because thereof, and for no other cause, he has been denied the right to contract for or tale employment of any of the companies of the United States, and been prevented from obtaining employment and supporting himself by his trade o^ occupation. For all of which he claims to have been damaged in the sum of five thousand dollars, and asks- judgment therefor.
    The first causé of action stated in the plaintiff’s second amended petition was demurred to for the reason that the same did not state facts sufficient to constitute a cause of action in favor of the plaintiff, which demurrer was overruled. The defendant answered, specially denying the material allegations of the petition, except that during the summer of, 1894, there was a strike on certain railroad lines and that the plaintiff was not engaged in the strike, and averring that the plaintiff was dismissed from the defendant’s service for a jusi cause and after proper investigation. Plaintiff replied,'denying that he was discharged for just cause and after investigation.
    On the trial the issues thus made up by the pleadings were modified .by the court when the case was submitted to the jury, in this: First, that the first cause of action was withdrawn from the jury with the consent of the plaintiff’s counsel; second, averments contained in the second amended petition to the effect that it was customary for the defendant to grant letters giving a statement of services rendered, were taken from the consideration of the jury by the charge of the eourt, because there was not evidence to establish any such custom.
    It appears in the testimony that the plaintiff had been twice suspended while in the service of the defendant company, namely, in March and in May, 1894, for breach of duty as an employe, and that on the 26th day of December, 1894, and just prior to the time that the leave of absence was granted to the plaintiff, there had been a collision of the train on which the plaintiff was a brakeman in the switching yards at Bellevue, and which it was claimed was occasioned by the negligence of the plaintiff, Schaffer, and that on the following day, the 27th day of December a passenger train ran through a misplaced switch in the Bellevue yards for the condition of which the plaintiff was claimed to be responsible.
    The jury returned a verdict in favor of the plaintiff in the sum of five thousand dollars on which judgment was entered by the trial court. The circuit court affirmed the judgment of the common pleas court, and this proceeding is prosecuted to reverse the judgments of the two lower courts.
    'Williamson, Cushing & Clarke, and C. P. & L. Wickham, for plaintiff in error.

      Vickery &\ Vickery, for defendant in error.
   Davis, J.

It is important to note in this case, as was stated by the trial judge in his charge to the jury, that there was no obligation by custom or express agreement to give to the plaintiff a clearance. If, therefore, an obligation to furnish a clearance existed at all it must have arisen by implication of law; and the whole contention is whether the law imposed such an obligation upon the defendant, under the facts disclosed in this record.

The plaintiff alleges that he was unable to obtain employment after his discharge by the defendant, by reason of the failure and refusal of the defendant to furnish, on request, the plaintiff’s record of service, or a consent and clearance. As there is no testimony in regard to “consent,” that expression of the pleader may be disregarded. The term “clearance” is mentioned in the amended petition as a “card showing that the applicant was in no way connected with said strike,” that is, with the railroad strike in 1894, known as the A. R. U. strike. The plaintiff, Avhen on the witness stand, stated that “a clearance is a paper showing the place of employment, kind of employment, the time and whether the service Avas satisfactory or not.” * * * “if ft was satisfactory it Avould be a clearance; it Avould enable a man to go and sIioav to a railroad company that it was all right, and if his Avork Avas unsatisfactory it would be otherAvise — he had best not shoAV it.” The trial judge, charging the jury, said: “A statement of his record Avith his last employer, as the plaintiff claims, in brief, wras a paper or clearance that it was agreed should be required. It is clai'med that this Avas required so that a railroad company might knoAV Avhether or not he Avas engaged in the A. R. U. strike.” So that the gist of the complaint is that the plaintiff Avas prevented from obtaining employment by the malicious refusal of the defendant to furnish the plaintiff Avith “a statement of his record Avith his last employer.”

Upon the first offer of testimony by the plaintiff, the defendant objected to the introduction of any testimony in the ease on the ground, that there was no case made in the pleadings such as would authorize any recovery. The court overruled the objection, reserving the decision of the question whether the plaintiff had pleaded a good cause of action, until the testimony was all in. In submitting the case to the jury, the court charged in substance, that if the plaintiff agreed, combined or conspired with other railroad companies that neither they nor any of them would employ any man who did not furnish a clearance, that is, a statement of his record from his former employer, and if the defendant, in accordance with such agreement, combination or conspiracy, refused to furnish such statement of his record, with intent to-prevent the plaintiff from obtaining employment from any or all of said railroad companies, then the plaintiff may recover. This instruction to the jury embodies the plaintiff’s theory of his case, and if it is not sound law the plaintiff was not entitled to a judgment, whatever may have been the findings of the jury upon the issues of fact which were submitted to them.

Recurring to the second amended petition, upon which the case was tried, it appears that it is not alleged that the defendant agreed or conspired with other railroad companies to refuse to give to the plaintiff, or to any other discharged employe, a statement of his record, nor is there a scintilla of proof of such a combination; but on the contrary the distinct claim is that such refusal was the individual, malicious act of the defendant. It is the undoubted and unabridged natural right of every individual not to employ, or to refuse to employe, whomsoever he may wish, and he cannot be called upon to answer to the public or to individuals for his judgment. . Nor can the motives which prompt his action be considered. In general terms, such right is as much inherent in corporate bodies as in natural persons. But whatever one person may lawfully do, two or more 'persons may join in doing. There can. be no such thing as a conspiracy'to do a lawful thing unless by unlawful means. If one railroad company may lawfully refuse to continue in its employ a person who has been engaged in a Avar upon its interests, called a strike, or avIio has shown himself to be negligent, incompetent, inefficient or dishonest, there does not appear to be any good reason why a number of railroad companies might not agree among themselves to not employ such a person. Indeed there are obvious reasons, public and private, why they should do so. Por example, it Avould be very inconsistent and unjust, if Avhile holding railroad companies to strict accountability for the negligence of their servants, Ave should restrict them in the natural right to protect themselves' in the matter of the selection of their employes. That such a combination or agreement may be lawfully made and executed is held in the folloAving Avell considered cases: Macauley v. Tierney, 19 R. I., 255; Bohn Mfg. Co. v. Hollis, 54 Minn., 223; Brewster v. Miller, 101 Ky., 368; Delz v. Winfree, 80 Tex., 400. And see Cooley on Torts, (2 ed.) 329. If, therefore, the jury found the affirmative of the issue of fact submitted, Avhether the defendant combined with other companies in an agreement not to employ any person Avho did not furnish a statement of his record with his former employer, it would afford no basis for recovery, unless it should appear that this agreement, which is prima facie valid, Avas brought about by some illegal act of the defendant. If the defendant, by fraud, falsehood or force, had brought about a refusal to employ the plaintiff, it would have committed a positive wrong against the plaintiff which would have been actionable. Of this, however, there is not a scintilla of proof. But an agreement to tell the truth about the plaintiff, or a refusal to say anything about him would not make an otherwise legal concert of action an illegal one and authorize a recovery against the defendant. Says Field, C. J., in Vegelahn v. Guntner, 167 Mass., 103: “I am not convinced that to persuade one man not to enter into Ihe employment of another, by telling the truth to him about such other person and his business is actionable at common law, whatever the motive might be.” The Supreme Court of Georgia, in passing upon the constitutionality of a statute which required certain classes of corporations to communicate to their discharged employes the reasons for discharge, under heavy penalty in the name of damags, said: “A statute which undertakes to make it the duty of incorporated railroad, express and telegraph companies to engage in correspondence of this sort with their discharged agents and employes, and which subjects them in each case to a heavy forfeiture, under the name of damages, for failing or refusing to do so, is violative of the general private right of silence enjoyed in this state by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred. Statements or communications, oral or written, wanted for private information, cannot be coerced by mere legislative mandate at the will of one of the parties and against the will of the other.” Wallace v. Railway Co„ 94 Ga., 732.

The theory of the circuit court that silence, or refusal to render a statement on request, is in the nature of a slander, and, if its effect is to prevent the person from obtaining employment, it is an actionable wrong, is untenable. As stated at the outset, there was between these parties no contract for a statement, and there is no statute in Ohio requiring it; indeed, it is doubtful whether one could be made that would be valid. Wallace v. Railway Co., supra. It is conclusively shown in Railway Co. v. Jenkins, 174 Ill., 402, 405, that no such duty is imposed on the employer by the common law. For convenience of reference, some of the authorities there cited are quoted here: “On examination it will be perceived that this right of an employer t6 give, as it is termed, a ‘character’ to his ex-employe is nothing more than a consequence of the right to communicate one’s belief. * * * No one is under any obligation to make such a communication. He does not owe it as a duty, either to the employer or the employe, to make any communication on the subject.” Townshend on Slander and Libel, (4 ed.) 425. “It is not legally compulsory on a master or mistress to give a discharged servant any character, it matters not how much a servant is entitled to character in fairness or how cruel the refusal might be.” 14 Am. & Eng. Enc. Law, (1 ed.) 799. “It is clear, however, that in the absence of any specific agreement to that effect there is no legal obligation binding a person who has retained another as a servant, to give that person any character at all on dismissal, and that no action will lie against him for refusing to do so.” Smith on Master ■& Servant (Text Book ed.), 380, 381. “The master is under no legal obligation to give a testimonial of character to his servant.” 2 Parsons on Contracts, *43-44.

Without pursuing this discussion further it may be said that the views of the courts below respecting the law governing this case, and as given in the charge to the jury, were entirely wrong, and that upon the facts which the jury were authorized to find upon the issues submitted to them, and which they are presumed to have found, the judgment ought to have been for the defendant.

Reversed and judgment for defendant.

Burket, Spioar and Shauck, JJ., concur.

Minshall, C. J.

I concur in the judgment, and the syllabus as framed, but do not concur in the view expressed in the opinion that companies may enter into an agreement among themselves, not to employ persons who have engaged in what is known as a “strike.” Such an agreement is against public policy, as tending to encourage idleness and cause poverty among working men, by. depriving them of the means of earning a livelihood for themselves and their families. Each company should be at liberty to employ such persons as in its judgment may seem best, unrestrained by any agreement with other companies. A particular company may be disposed to employ persons, although they may have been engaged in a strike, and would do so but for the fact that it is restrained by its agreement with other companies from doing so. It seems to me that such an agreement is clearly against public policy and should not be recog-' nized by the courts. To do so would, in effect, make engaging in a strike an offense punishable by exclusion from employment. The reason I concur in the judgment and syllabus is, I fail to discern from the record that there was any evidence tending to show that the defendant had entered into an agreement with other companies not to employ persons avIio had been engaged in the railroad strike of 1894. All it did was to refuse to give the plaintiff a “clearance” when requested. This it migh treasonably do for reasons stated in the opinion.