author: Newman, J.

text:
    Miller, Receiver, v. Eagle.

      Dayton municipal court — Taxing and securing costs of jurors— In civil actions—Validity of Section 1579-61, General Code.

    Section 1579-61, General Code, being Section 16 of the Dayton municipal court act (103 Ohio Laws, 390), providing that in all civil actions and proceedings the cost of summoning jurors and the fees of jurors shall be taxed as part of the costs, and such costs must be secured in advance by the party demanding jury, is constitutional and valid.
    (No. 15375
    Decided March 20, 1917.)
    Error to the Court of Appeals of Montgomery county.
    Plaintiff in error, William Miller, as receiver of The Dayton Automobile Company, filed his statement of claim in the municipal court of Dayton in which he asked judgment against the defendant in error, D. A. Eagle, on an account for labor performed and material furnished. Defendant answered denying each and every allegation contained in the statement of claim. Before the court proceeded to inquire into the merits of the cause, defendant in error filed a motion in which he demanded a jury of twelve men in said cause. This motion was overruled upon the ground that defendant in error refused to secure in advance the costs of summoning jurors and their fees. An exception was taken to the overruling of this motion. The cause was thereupon tried to the court, and the court found on the issues joined in favor of plaintiff in error. A motion for a new trial was overruled, and judgment rendered against defendant in error in the amount claimed in the statement of claim. The court of common pleas affirmed the judgment of the municipal court. This judgment of affirmance rendered by the court of common pleas was reversed by the court of appeals and the cause was remanded to the municipal court for a new trial and for such further proceedings as are provided by law. Plaintiff in error is asking this court to reverse the judgment of the court of appeals.

      Messrs. D. W. & A. S. Iddings; Mr. John C. Shea, assistant city attorney; Mr. A. W. Schulman and Messrs. Nevin & Kalbfus, for plaintiff in error.

      Mr. John Egan; Mr. Irvin C. Delscamp and Mr. George F. Holland, for defendant in error.
   Newman, J.

The motion of defendant in error demanding a jury of twelve men was overruled by the municipal court for the reason that he refused to secure in advance the costs of summoning the jurors and their fees. Authority for such action on the part of that court is found in Section 1579-61, General Code, being Section 16 of the Dayton municipal court act (103 Ohio Laws, 390), as follows : “In all civil actions and proceedings the cost of summoning jurors and the fees of jurors shall be taxed as part of the costs, and such costs must be secured in advance by the party demanding jury.” This section was held unconstitutional by the court of appeals. The defendant in error contending for the correctness of that holding insists that Section 1579-61 is repugnant to Section 5, Article I of the Constitution, which guarantees the right of trial by jury, and also to Section 26, Article II, which provides that all laws, of a general nature, shall have a uniform operation throughout the state.

Section 1579-60, the section preceding the one in question here, is as follows: “All causes, both civil and otherwise, in the municipal court shall be tried to the court unless, before the court shall proceed to inquire into the merits of the cause, a jury shall be demanded in writing by either party to the action. In all civil actions where a jury shall be demanded, it shall be composed of six men, having qualifications of electors, unless the parties agree on a less number. Provided, however, that any party may demand a jury of twelve men by specifying that number in said written demand. In all civil actions if not less than three-fourths of the members composing the jury for the trial of a case, shall agree upon a verdict, the same shall be rendered and have the same force and effect as if the verdict had been agreed upon and rendered by the jury unanimously. In all actions and proceedings of which police courts in cities have or may hereafter be given jurisdiction, where a jury may be and is demanded, it shall be composed of twelve men having the qualifications of electors.”

It is to be observed that this section provides for a jury composed of twelve men, such a jury as was contemplated by the framers of the constitution. But it is the contention of defendant in error that Section 1579-61, supra, requiring the cost of summoning jurors and their fees to be secured in advance by the party demanding the jury, amounts to an impairment of the right of trial by jury within the meaning of the constitution, and is therefore invalid.

In Reckner, etc., v. Warner, 22 Ohio St., 275, it was provided in the legislation, the validity of which was challenged in that case, that the assessment of damages should be made by three disinterested freeholders of the county, and it was claimed that Section 19, Article I of the Constitution, was nullified, in that there was no provision for an assessment by a jury in the first instance. The court held that inasmuch as the act provided for an appeal to a court where a constitutional jury could be had such legislation was preserved from constitutional infirmity, upon the authority of Norton v. McLeary, 8 Ohio St., 205. In the Norton case, the question of the constitutionality of an act extending the jurisdiction of justices of the peace in civil cases was questioned upon the ground that it made no provision for the trial, by a jury of twelve men, of actions commenced in virtue of such extended jurisdiction, the court holding that the act was not in conflict with the constitutional guarantee of a trial by jury because it provided for an appeal from the justice of the peace to the court of common pleas where either party might secure the full benefit of a trial by jury.

But it was also claimed in the Reckner case that even if the legislation there under consideration was not open to the objection that it contravened the provisions of Section 19, Article I, yet the bond or undertaking required of the appellant to secure all costs that might be assessed against him was an unauthorized condition and burden imposed upon his constitutional right to a trial, or assessment of compensation, by a jury. This contention was not • sustained by the court, the court being of the opinion that the requirement of an appeal bond conditioned for the payment of the costs adjudged against the appellant was a moderate and reasonable restriction upon the enjoyment of the right of trial by jury and was not an impairment of the right itself, within the meaning of the constitution.

By parity of reasoning the condition imposed in the instant case by Section 1579-61, requiring the cost of summoning jurors and the fees of jurors to be secured in advance by the party demanding the jury, is likewise but a moderate and reasonable restriction upon the enjoyment”of the right of a trial by jury and is not an impairment of that right.

In Silberman et al. v. Hay, 59 Ohio St., 582, it was held: “1. The right of trial by jury is a subject-matter of general legislation, and laws affecting it must be uniform in operation throughout the state. Section 26, Art. 2, Const. 2. A statute, by the provisions of which the parties to a suit in which the issues are of right triable by jury are ‘deemed’ to have waived the right, unless a certain time before the term at which the issues are, by the laws of the state, required to be made up, a demand is made for a jury, attended with a ‘deposit’ of a certain sum of money for the benefit of the jury fund, affects the right of trial by jury, and must be uniform in its operation.' The Cuyahoga County Jury Law adopted May 29, 1894, (91 Laws, 793), is, in substance, such a law; and being limited in its operation to Cuyahoga county, is invalid.”

In deciding that the Cuyahoga county jury law affected the right of trial by jury, the court could not have meant to hold that this right was affected in the sense that it was impaired and the law thereby rendered invalid, for the inference to be drawn from the second paragraph of the syllabus is that had the law not been limited in its operation to Cuyahoga county it would have been preserved from constitutional infirmity. The law was declared invalid because of lack of uniformity in its operation. In the instant case, the court of appeals, in declaring the section under consideration unconstitutional, held that special or local acts could not be employed to create special or local limitations upon the right of trial by jury. It based its decision on the Silbermcm case. But the syllabus in that case, as in all cases, must be construed with reference to the facts presented by the record. The court was dealing with a law relating to a jury in the court of common pleas, a court created by the constitution, and what was decided there should be limited in its application to such courts and not extended so as to apply to statutory courts. This is consistent with the holding in State, ex rel. Atty. Gen., v. Bloch, 65 Ohio St., 370, decided two years later, the court at that time being composed practically of the same members as constituted it when the Silberman case was decided.

In the Bloch case an act establishing an insolvency court in the city of Cleveland was held constitutional and valid. The act in question was local in its operation and had to do with the establishment of a court, concededly a subject of a general nature. It was urged that legislation upon such a subject, not available and operative alike in all parts of the state, is prohibited by Section 26, Article II of the Constitution, requiring uniformity in operation throughout the state of laws of a general nature. But it was held that Section 1, Article IV of the Constitution, authorizing the establishment by the general assembly of inferior courts, was a special grant of legislative power upon a particular subject, which itself prescribed the rule for the government of the legislative body in the exercise of that power. As was said in that case, the general assembly is vested with full power to determine what courts inferior to the court of appeals it will establish, local if deemed proper, either for separate counties or cities, and to define their jurisdiction and power, and in the enactment of laws relating thereto is not subject to the limitation imposed upon the legislative power in requiring all laws of a general nature to have uniform operation throughout the state. The Bloch case was approved in State, ex rel. Fox, v. Yeatman et al., 89 Ohio St., 44, and In re Hesse, 93 Ohio St., 230.

The general assembly established a municipal court for the city of Dayton and defined its jurisdiction and power. It is a local court established to meet the needs and conditions of that city. The law establishing this court and defining its jurisdiction and power is designedly and authoritatively local in its operation, and the question of the uniformity of its operation throughout the state cannot arise. As a part of this law Section 1579-61, relating to a trial by jury, a part of the machinery of the court, was enacted. Its requirement, as we have said, is but a moderate and reasonable restriction upon the enjoyment of the right of trial by jury and does not amount to an impairment of that right. There can be no valid constitutional objection upon that ground. The-fact that its provisions are local in their operation does not invalidate the section, as the law was enacted under a special grant of legislative power and may stand against the provisions of Section 26, Article II of the Constitution, requiring uniformity in operation throughout the state of laws of a general nature.

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

Nichols, C. J., Wanamaker, Jones, Matthias and Johnson, JJ., concur.


source: Caselaw Access Project

author: Wanamaker, J.

license: Public Domain

text:
    The State of Ohio v. Schultz.

      Objection to criminal indictment — Because of apparent defects— Must be by motion to quash, when—Waiver of defects by other pleadings — Indictment not bad for duplicity, when — Charge of receiving and concealing stolen property -^-Section 13581, General Code.

    1. The defendant in a criminal cause who desires to object to an indictment because of defects apparent upon the face of the record, relating to the form or manner in which an offense is charged, must do so by a motion to quash.
    2. By demurring, pleading in bar, or by pleading to the general issue, he is held to have waived the defects which might be taken advantage of by a motion to quash.
    3. An indictment that charges in the same count both receiving and concealing property, knowing the same to have been stolen, is not bad for duplicity. {Hale v. State, 58 Ohio St., 676, approved and followed.)
    4. In an indictment wherein the defendant is legally charged with receiving and concealing stolen property, knowing the same to have been stolen, which allegations are followed by the language “and so the jurors aforesaid upon their oaths and affirmations aforesaid, do say that the said Harvey Schultz then and there in manner and form’ aforesaid, unlawfully did conceal, take and carry away the said personal property,” such latter allegation is wholly irrelevant and ineffectual to either help or hurt the former charge of the indictment. It is at most a legal conclusion and should be regarded as surplusage under and by virtue of Section 13581, General Code.
    (No. 15319
    Decided March 20, 1917.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Muskingum county.
    The facts are stated in the opinion,

      Mr. Perry Smith, prosecuting attorney, for the exceptions.

      Mr. P. H. Tannehill, against the exceptions.
   Wanamaker, J.

The grand jury of Muskingum county, Ohio, returned an indictment against Harvey Schultz, the material part of which reads as follows:

“That Harvey Schultz * * * did unlawfully and fraudulently receive and conceal one diamond of the value of $400.00 of the personal property of J. G. F. Holston, Sr., then lately before stolen, he, the said Harvey Schultz, then and there well knowing said personal property to have been stolen as aforesaid; and so the jurors aforesaid upon their oaths and affirmations aforesaid, do say that the said Harvey Schultz then and there in manner and form aforesaid, unlawfully did conceal, take and carry away the said personal property of the said J. G. F. Holston, Sr.”

No motion to quash, plea in abatement, or demurrer, was filed to this indictment, and upon the general issue the defendant pleaded not guilty. Thereafter the case was regularly assigned, the jury impaneled, and the court proceeded to try Schultz upon the indictment.

While the state was engaged in offering its evidence in support of the indictment, and before it had rested, the trial judge upon his own motion made the following order and statement in support thereof:

“I will say to counsel in this case that, whether the matter had been brought to the attention of the Court or not, the Court was going to call counsels’ attention to the language of this indictment.
“This indictment is supposed to charge the offense or crime of receiving stolen property. Now if counsel for the State will carefully look over this indictment, whatever you have to urge to the Court, I would like to hear from you as to whether or not you did so charge. You attempt to charge it in the first part of your indictment. You do not charge it in the part of your indictment that makes the curative part under the statute. After reciting that the defendant 'well knowing said personal property to have been stolen as aforesaid,’ the indictment says, — 'and so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say that the said Harvey Schultz, then and there, in the manner and form aforesaid, unlawfully did conceal,’ not receive, but 'did conceal.’
“Now you find some law that the Court ought to be guided by in the case of Holtz v. The State, 30 O. S., 486. In the syllabus of that case' and in the opinion in the case, the Court holds that concealment is not a necessary or essential element of the - crime of concealing or buying stolen property, and if alleged in the indictment, it is surplusage and need not be proved.
“The intention of the pleader, or the person drawing this indictment, was to charge the offense of receiving stolen property. The court is inclined to believe at this time that the only charge there is concealment.
“You will find in the 59th O. S., p. 350, the case of Smith v. The State.
“The pleader perhaps attempted to follow the form of an indictment under Section 12450 and to follow the charge as making it different from receiving money and receiving other stolen property; did not follow in this charge, that this deféndant was guilty of receiving stolen property.
“If counsel for the state have anything to urge along this line, the Court will be only too glad to hear from you.”

After some further discussion the trial judge held that no offense was legally charged in the indictment, and thereupon discharged the jury and the accused. Exceptions were taken by the prosecuting attorney, which under favor of Section 13681 et seq., General Code, are now here for our consideration.

The Constitution of Ohio, Section 10 of the Bill of Rights, provides:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury; * * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof * *

The indictment against Harvey Schultz was under favor of Section 12450, General Code, which reads:

“Whoever buys, receives or conceals anything of value which has been stolen, taken by robbers, embezzled or obtained by false pretense, knowing it to have been stolen, taken by robbers, embezzled or obtained by false pretense, if the value thereof is thirty-five dollars or more, shall be imprisoned,” etc.

In Ohio all crimes are statutory, and wherever a statute provides the criminal procedure such provisions are exclusive. The Ohio statutes very fully point out how exceptions can be taken to an indictment.

Section 13620, General Code, provides:

“The accused may except to an indictment by — first, a motion to quash; second, a plea in abatement; and third, a demurrer.”

Section 13625, General Code, provides:

“The accused shall be taken to have waived all defects which may be excepted to by a motion to quash or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue.”

The uniform practice in Ohio has been to raise the question of duplicity as to an indictment by a motion to quash. No such motion was filed in this case, but the defendant pleaded not guilty to the general issue and proceeded to trial, thereby waiving all defects as to form appearing upon the face of the indictment. But as a matter of practice it may be well to suggest that had such motion been filed at the proper time, upon the ground that the indictment charged both receiving and concealing stolen property, knowing the same to have been stolen, such motion should have been overruled, agreeable to the uniform holdings of this court.

One of the best considered cases touching this proposition of law is Hale v. State, 58 Ohio St., 676. The first paragraph of the syllabus reads as follows:

“When an offence against a criminal statute may, in the same transaction, be committed in one or more of several ways as therein provided, the indictment may, in a single count, charge its commission in any or all of the ways specified, if they are not repugnant.”

Certainly there can be nothing repugnant between receiving stolen property and concealing stolen property.

The accused having in this case pleaded to the general issue there remained for him the right to demur, to object to the jurisdiction, or to establish the entire failure of proof upon any essential element of the crime charged. These were the only legal questions left to him and they would have to be raised by due process.

While the statement of the trial judge is evidently not complete, there is enough before us to show that in effect the indictment was held insufficient in law — that is that it did not charge an offense under the laws of the state of Ohio.

We come now to the main question, Did the indictment charge a crime under Section 12450, General Code?

For the purpose of better analyzing the indictment, it will be divided into two parts:

Part 1. “Did unlawfully and fraudulently receive and conceal one diamond of the value of $400.00 of the personal property of J. G. F. Hols-ton, Sr., then lately before stolen, he, the said Harvey Schultz, then and there well knowing said personal property to have been stolen as aforesaid;”

Part 2. “and so the jurors aforesaid upon their oaths and affirmations aforesaid, do say that the said Harvey Schultz then and there in manner and form aforesaid, unlawfully did conceal, take and carry away the said personal property of the said J. G. F. Holston, Sr.”

Under the statute, Section 12450, supra, if one buys anything of value, knowing it to have been stolen, or receives anything of value, knowing it to have been stolen, or conceals anything of value, knowing it to have been stolen, he commits an offense prohibited by the statute. Both these elements are clearly charged in part 1 of this indictment.

We have held that the use of the words “receive and conceal” was not good ground for sustaining a motion to quash based on duplicity.

In 1 Bishop’s New Criminal Procedure (2 ed.), Section 436, the rule is stated as follows:

“A statute often makes punishable the doing of one thing or another, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has 'or/ and it will not be double, and it will be established at the trial by proof of any one of them.”

The same doctrine is fully discussed and most ably stated in Hale v. The State, supra, where such an indictment is held good.

Now, the first part of the indictment is admittedly sufficient in law to charge an offense, according to all the authorities and the numerous decisions of our own court. We come therefore to the question as to whether or not the second part of the indictment could destroy the sufficiency of the charge in the first part.

What occasion there possibly could be for using that language, except that some form-book might have it, is inconceivable. It is at most a legal conclusion, wholly unnecessary to charge an offense.

Part 1 of the indictment is complete in itself. Part 2 neither avers anything, nor adds anything to it. It is clearly not good pleading. But if every indictment were to be held bad because it had some faulty or unnecessary averments in it, the riot of crime that would follow in the state of Ohio would be appalling.

From the language used by the trial judge, it would seem that part 2 was spoken of as a “curative” provision. We regret that we have not now before us all that the court doubtless said upon this matter.

The legislature has very wisely provided that certain faults or defects in indictments, that are more or less technical and trifling in their nature, shall not be considered fatal to the indictment.

Section 13581, General Code, reads:

“An indictment shall not be invalid, and the trial, judgment or other proceeding stayed, arrested or affected * * * for surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged; * * * or for other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits.”

Part 1 of this indictment, having met the full constitutional and statutory requirements as to the nature and elements of the offense -charged, part 2 is merely so many idle words, so much surplusage, which could neither cure an insufficient charge nor destroy an otherwise sufficient charge.

Our courts to-day are not looking with favor upon the petty defects and technical flaws in indictments, so long as they do not affect the substantial rights of the parties to the action.

In this case the defendant was sufficiently advised of the charge against him, and every element thereof. The trial should have proceeded at least until the state had rested its case.

The court erred in its rulings and the exceptions thereto by the prosecuting attorney of Muskingum county are sustained.

Exceptions sustained.

Nichols, C. J., Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    The Collings-Taylor Co. v. American Fidelity Co.

      Contract of insurance indemnity — Employers’ liability—Damages for personal injury — Error—Evidence—Negligence—Employment restrictions as to minors — Age and schooling certificate—-Penalty for violation — Sections 7765, 7766, 12975 and 12994, General Code—Title to act of general assembly—Court construction of legislative intent.

    1. In an action to recover upon a contract of indemnity for money paid in satisfaction of a judgment rendered in an action brought by an employe against the insured for damages for personal injuries suffered in the course of his employment, where the defense is made that the injured workman was employed contrary to law, in violation of a specific condition written into the contract of indemnity, it is not error for the trial court to sustain an objection to the introduction in evidence of the record of the cause in which the judgment was obtained, offered by the defendant in support of this defense, where it appears from such record that the grounds of negligence upon, which the employe recovered the judgment for damages against the insured did not involve the legality of his employment.
    2. Sections 7765 and 7766, General Code, are the only laws of this state that provide for the issuing of an age and schooling certificate. Therefore, the phrase “the age and schooling certificate provided by law,” in Sections 12975 and 12994, General Code, necessarily means the age and schooling certificate authorized by the first named sections.
    3. Sections 7765 and 7766, General Code, authorize the issue of an age and schooling certificate as a condition precedent to the employment of a minor over 14 and less than 16 years of age, during the school term and while the public schools are in session. These sections do not authorize or require an age and schooling certificate during school vacation.
    4. Where the general assembly of Ohio expressly declares in the title to an act, that the purpose of such act is to make the laws on the subject to which it relates conform to the laws relating to a kindred subject, a court in construing such act will give effect to the intent and purpose of the law-making power, unless the language used in the act itself imperatively requires a different construction.
    (No. 15206
    Decided April 3, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    The Collings-Taylor Company brought action against the defendant in error, American Fidelity Company, in the common pleas court of Cuyahoga county, upon a contract to indemnify the plaintiff against loss and expense on account of claims of any of the employes of the plaintiff, wherever employed, for bodily injuries, including death resulting therefrom, accidentally suffered or alleged to have been suffered while said policy or contract was in force.
    The liability of the defendant by the terms of said contract was limited to $5,000, and, in addition thereto, all costs and expenses in the trial and defense of suits and legal proceedings against the plaintiff on account thereof.
    The plaintiff avers that Steve Korens accidentally suffered or alleged that he had suffered bodily injuries while in the employ of the plaintiff at its place of business, on the 11th day of June, A. D. 1911, while said policy was in full force and effect; that an action was brought by Steve Korens, by his next friend, against the plaintiff, in the court of common pleas of Cuyahoga county; that said action was duly tried and a final judgment therein rendered against the plaintiff for the sum of $6,000, with interest from the first day of the term, to-wit: April 1, 1913; and that said judgment was affirmed by the court of appeals of Cuyahoga county and plaintiff was compelled to pay to the said Steve Korens, for and on account of said injuries suffered by him and the judgment recovered therefor, the sum of $6,312 and $47.30 cost, and other costs and expenses incurred and sustained in the trial and defense of said action, amounting to $1,086.89.
    Plaintiff further avers that it duly performed all the conditions on its part to be performed, and that it gave notices required by the terms and conditions of the policy, but that the said defendant has not kept or performed the terms and conditions of said policy on its part to be kept and performed; that it neglected and refused, although often requested so to do, to settle and discharge said action against plaintiff, or to defend the same in the name of the plaintiff at its own cost and expense, and has failed, refused, and neglected to pay to the plaintiff the money plaintiff was compelled to pay in satisfaction of said judgment and costs.
    A copy of the contract of indemnity is attached to the petition. There was also an itemized account of the expenses incurred in defending the suit, filed as an amendment to the petition.
    The defendant answered, admitting that, for a valuable consideration to it paid, it entered into a contract to indemnify the plaintiff against loss and expense on account of claims of any of the employes of said plaintiff, and that this contract was in force at the time of the injury; that an action was brought by Steve Korens by his next friend against the plaintiff, and a judgment recovered for $6000, with interest thereon; and that this judgment was affirmed by the court of appeals and plaintiff was obliged to pay and did pay the amount of said judgment and the cost as stated in his petition and amendment thereto. The defendant also admits that the plaintiff gave notices required by the terms and conditions of the policy, and that it, the defendant, refused to defend said action and has refused to pay to plaintiff the moneys paid in satisfaction of said judgment and costs, or the costs and expenses incurred, sustained and paid by plaintiff in defense of said action. Further answering, defendant denies each and every allegation in said petition contained.
    The defendant then avers that said policy of insurance had a condition therein written, wherein it was recited that said policy did not cover loss or expense for injuries or death:

      First. Caused to any person whose compensation is not included in the pay roll.

      Second. Caused to or by any child under fourteen years of age.

      Third. Caused to or by any person employed by the insured contrary to law.
    Defendant further avers that on or about the 6th of June, A. D. 1911, the plaintiff employed Steve Korens as a sweeper and to wipe, clean and operate or assist in wiping, cleaning and operating certain carding machines which plaintiff then owned, maintained and operated at its plant; that these carding machines were operated by belts connected with the motor power of the plaintiff, and consisted of numerous rollers, large and small, with many pins projecting from the same, and fed by automatic feeders; that the belts, wheels, pulleys and rolls of these carding machines were not guarded or covered, and the clothing, body or tools of employes coming in contact with the machinery while the same was in motion were liable to be caught and entangled therein; that Steve Korens at the time of his injury was in the act of removing with a broom, a rag from one of the carding machines, when his shirt sleeve was caught on the pins of the rolls and his arms pulled into the machine, causing the injury complained of; that Steve Korens was required in the performance of his duties to be around and about the carding machines and in close proximity thereto, and that his employment was dangerous to life and limb; that Steve Korens was a minor between fourteen and sixteen years of age and was employed by plaintiff and permitted to work in its factory without first procuring from the proper authority the age and schooling certificate required by law; that the jury in the case of Steve Korens against this plaintiff returned a general verdict against this plaintiff on the issue joined by the second amended petition, the answer, and the reply thereto, and thereby found and determined all of the foregoing facts in reference to the employment of Steve Korens to be true and that said Steve Korens was employed by said plaintiff contrary to law and in violation of condition two of said policy of insurance; and that thereupon this defendant promptly notified this plaintiff that it would not take charge of the adjustment and settlement of said claim or of any suit brought to recover thereon, and would not be responsible under the terms of said policy for any judgment rendered against the plaintiff therein.
    The plaintiff for reply admits that the policy of insurance contained the provisions pleaded in the answer; that it employed Steve Korens on the 6th of June, 1911, without demanding the age and schooling certificate; that the public schools were not then in session, the school term having ended on the 23d of May, 1911; that Steve Korens was employed as a sweeper and cleaner in its plant; that its machines were operated by belts connected with motor power, and fed by automatic feeders; that Korens at the time of his injury was engaged in the act of removing with a broom, a rag from one of the carding machines; and avers that he was at the time acting outside the scope of his employment and in utter and open disregard of his instructions and the warnings that had been given him.
    The defendant to maintain the issue on its part offered in evidence a transcript of the docket and journal entries in the action in which Steve Korens recovered the judgment against The CollingsTaylor Company, the reply of Steve Korens in that action to the answer to the second amended petition of the plaintiff, and the bill of exceptions taken in the trial of that cause, which bill of exceptions contained a transcript of all the evidence, the exhibits, and the charge of the court. Whereupon counsel for plaintiff objected to the introduction in evidence of all of the papers offered by defendant, which objection was sustained by the court, to which defendant excepted. There being no other or further evidence offered, the court directed the jury to return a verdict in favor of the plaintiff in the amount claimed in its petition, to which the defendant also excepted.
    The jury under the instructions of the court returned a verdict in favor of the plaintiff. Motion for a new trial was overruled, and judgment entered in accordance with the verdict. Error was prosecuted in the court of appeals, which court reversed the judgment of the common pleas court, “because it is contrary to the weight of the evidence.” And, “no other error appearing in the record,” the cause was remanded to the court of common pleas for further proceedings.
    This proceeding in error is prosecuted in this court to reverse the judgment of the court of appeals.

      Messrs. Westenhaver, Boyd & Brooks, for plaintiff in error.

      Messrs. Guthery & Guthery, for defendant in error.
   Donahue, J.

Upon the trial of this case in the common pleas court the plaintiff introduced in evidence the policy of insurance, and testimony in reference to the date of the adjournment of the school term, tending to prove that the public schools of Cleveland were not in session at the time plaintiff employed Steve Korens, nor at the time of the' accident, nor at any other time during his employment.

It was admitted that the several items of the account contained in the amendment to the petition are correct.

The defendant offered in evidence a transcript of the docket and journal entries in the action in which Korens recovered judgment against The Collings-Taylor Company, the reply of Steve Korens in that action to the answer to the second amended petition, and the bill of exceptions taken in the trial of that cause, which bill contains a transcript of all the evidence, the exhibits, and the charge of the court. To the introduction of this evidence the plaintiff objected, which objections were sustained by the court. No further evidence was offered by the defendant.

It is apparent that the question of the weight of the evidence could not have been before the court' of appeals. Therefore, that court erred in reversing the judgment of the common pleas court “because it is contrary to the weight of the evidence.”

It appears from the entry of judgment in the court of appeals that that court found “no other error appearing in the record.” Nevertheless, it is the duty of this court to consider the questions presented by the record, and to determine whether the judgment of the court of appeals is right for any reason.

This involves a consideration of the ruling of the trial court in rejecting the evidence offered by the defendant and a further consideration of the question whether the judgment of that court is contrary to law.

It appears from the transcript of the docket and journal entries, and the bill of exceptions, in the case of Steve Korens, a Minor, by John Korens, his Next Friend, v. The Collings-Taylor Company, offered in evidence by the defendant, that the trial court in that cause took from the jury all grounds of negligence pleaded in the petition, except the fourth, fifth and seventh, which read as follows:

“4th. Defendant was reckless and negligent in failing to instruct this plaintiff adequately and fully respecting the operation of said carding machine, and was further reckless and negligent in failing to warn and apprise him of all the dangers thereof.
“5th. Defendant was reckless and negligent in ordering and directing and permitting the removal of non-wool rags or extraneous material from said machine with a broom while said carding machine was in motion or operation.
“7th. Defendant was reckless and negligent in failing to adopt, promulgate and enforce a reasonably safe rule and method for the operation of said machine and the removal of extraneous or non-wool rags therefrom.”

Neither of these three grounds of negligence submitted to the jury by the court, and upon one or all of which the jury’s verdict must have been predicated, involved the question of the employment of Steve Korens by the insured contrary to law.

Therefore, the facts pleaded in the defendant’s second amended answer in this case were not “found and declared by said jury in rendering said verdict, and by said court in overruling said judgment,” as averred in that answer.

While the trial court in that cause may have charged erroneously touching the question of the assumption of risk, yet it could not in that manner import into that- case an issue not presented by the pleadings to the prejudice of this plaintiff in this case. The court in that case, however, did specifically charge the jury that before it could return a verdict for the plaintiff, he must establish by the preponderance of the evidence, “that the defendant was guilty of negligence in some one or more of the particulars as charged in the fourth, fifth or seventh grounds of negligence in the petition, and that such negligence was the proximate cause of the injury to the plaintiff.”-

This charge fairly submitted to the jury, the real issues involved in that action. If the charge in relation to the assumption of risk was erroneous it was not prejudicial.

The trial court in the case at bar properly excluded the record of the Korens case offered in evidence by the defendant.

It is averred in the second amended answer that the employment of Steve Koyens was in violation of condition two of the policy of insurance, which recites that “said policy does not cover loss or expense for injuries or death caused to or by any child under fourteen years of age.”

This answer admits that Steve Korens was between 14 and 16 years of age. No evidence was offered to the contrary. The burden of proof was upon the defendant to establish the truth of this averment by a preponderance of the evidence. It offered no evidence directed to that issue, but on the contrary admitted that Steve Korens was over 14 years of age. There was therefore nothing to submit to the jury touching this averment as to the violation of condition two of the policy of insurance.

It is contended on the part of the defendant that the plaintiff violated the third condition of the policy of insurance, which reads as follows:

“Third. Caused to or by any person employed by the insured contrary to law.”

This is denied by the plaintiff. No evidence was admitted on the part of the defendant in support of this averment. This of course ends the inquiry so far as the pleadings present an issue of fact touching the employment of Steve Korens by plaintiff contrary to law.

The reply of the plaintiff, however, avers that Steve Korens was employed June 6, 1911, was injured on the 11th day of the same month, and that the public schools of Cleveland were not in session, having closed for the current school year May 23, 1911. This seems to be established by the stipulation, with reference to the testimony of Sarah E. Hyre, and there appears to be no controversy touching any of these averments.

The question is therefore fairly presented by this record whether it is contrary to law to employ during the summer school vacation, a minor between 14 and 16 years of age, without first procuring an age and schooling certificate as a condition precedent to such employment. Section 12994, General Code, imposes a penalty upon a person employing a minor between 14 and 16 years of age in a factory, workshop, business office, telephone or telegraph office, restaurant, bakery, hotel, apartment house, mercantile or other establishment, or in the distribution or transmission of merchandise or messages, without first procuring from the proper authority “the age and schooling certificate provided by law.” This section, as it now reads, is general in its terms, and makes no exception whatever with reference to vacation of the public schools; but before this section can be properly construed it is necessary to inquire as to the age and schooling certificate provided by law.

Sections 7765 and 7766, General Code, provide for an age and schooling certificate, authorizing the employment of a child-under.sixteen and over fourteen years of age during the school term and while the public schools are in session. That certificate is to be issued only upon satisfactory proof that the child is over fourteen years of age and has been examined and passed a satisfactory fifth grade test in the studies enumerated in Section 7762, General Code.

It necessarily follows that “the age and schooling certificate provided by law,” referred to in Section 12994, refers to the age and schooling certificate authorized to be issued under Sections 7765 and 7766, General Code; for there is no other certificate provided by [aw- That certificate, under the plain terms of the statute authorizing its issue, has no purpose or application except “during the school term and while the public schools are in session.” It is clear, not only from the language used, but also from the history of this legislation, that no other construction can be given it.

On the 23d of April, 1904 (97 O. L., 321), the general assembly of Ohio passed an act, one of the purposes of which, as declared in its title, was “to make the minor labor law conform with the compulsory education law.” That act required the age and schooling certificate provided in Section 4022-2, Revised Statutes, as a condition of employment of a child over fourteen and under sixteen years of age. This act was amended February 28, 1908 (99 O. L., 30), but the amendment retained this provision in identical language.

Section 4022-2, Revised Statutes, provided that no child under sixteen years of age should be employed during the school term and while the public schools are in session, without first procuring the age and schooling certificate. The codifying commission changed the language of the original act, “the age and schooling certificate prescribed in Section 4022-2 of the Revised Statutes of Ohio,” to read as follows, “the age and schooling certificate provided by law.” This language necessarily means the same as the language found in the original act, especially in view of the fact that no section other than Sections 7765 and 7766 provides for the certificate. These sections are found in the chapter relating to compulsory education, and contain substantially the same provisions as Section 4022-2, Revised Statutes.

It is therefore evident that this provision of Section 12994, General Code, must receive the same construction as the similar provision found in the original statute, which by its title appears to have been passed for the purpose of making the minor labor laws conform with the compulsory-education laws of Ohio.

The general assembly having solemnly declared that it was the purpose and intent in passing this act to make the laws relating to minors conform with the laws relating to compulsory education, a court should hesitate to ignore the intention of the legislature, expressed in clear and explicit language, and to declare these laws in conflict with each other. In this section, however, the phrase “provided by law" must necessarily be construed in connection with the statutes which provide for such certificate. Sections 7765 and 7766, General Code, which provide for the age and schooling certificate, require such certificate only “during' the school term and while the public schools are in session."

The fact that under the provisions of Section 7766, General Code, these certificates can be issued only upon satisfactory proof that the child has been examined and passed a satisfactory fifth grade test in the studies enumerated in Section 7762 'necessarily confines the issuance of these certificates'to the school term, for it would be practically impossible to hold such examination during vacation.

This would mean the enforced idleness of a child legally entitled to be employed during the school vacation, merely because there are no means provided by which the necessary certificate could be procured.

The contention on the part of the defendant that these laws relating to the employment of minors do not conform to the laws relating to compulsory education, notwithstanding the declared purpose and intent of the legislature, is sought to be maintained upon the theory that it was the intent of Section 12994, General Code, to prevent the employment of a child between fourteen and sixteen years of age in the establishments described in Section 12993, General Code, and in the distribution and transmission of merchandise or messages, without some evidence of the mental capacity of the child to protect himself from the dangers incident to such employment.

If the legislature had so intended, it would undoubtedly have provided for the procuring of a certificate of that character instead of the certificate provided in Sections 7765 and 7766, General Code, and would also have provided some means by which such a certificate could be obtained during the school vacation. However, an examination of Section 12993 furnishes a conclusive answer in the negative of this proposition. It includes business offices, telephone or telegraph offices, restaurants, hotels, apartment houses, mercantile or other establishments, and the distribution and transmission of merchandise or messages. These employments present no extraordinary danger. On the contrary, many of them are as safe as any employment in which a minor could engage.

In view of the fact, however, that Section 12972 specifically prohibits the employment of a child under sixteen years of age in a place dangerous to its life, limb or health, or where its morals are likely to be impaired or depraved, further legislation upon that subject would be useless and unnecessary. This latter section covers the whole subject-matter, and protects a child under sixteen years of age from these dangers, regardless of whether he has or has not procured the age and schooling certificate.

The issue as to whether the employment of Steve Korens was in violation of Section 12972, General Code, was fairly presented by the pleadings in this case, but, the court having properly excluded the record in the original case, no other evidence was offered on the part of the defendant in the trial court to maintain this issue.

The phrase, “the age and schooling certificate provided by law,” found in Section 12975, must receive the same construction as heretofore given that language in. Section 12994. Section 12975 in this respect contains practically the same language found in Section 4022-2, Revised Statutes, which was originally a part of the compulsory-education laws of the state. The fact, that in the subdivision of that original section by the codifying commission this part of it was placed under its present sectional numbering in the chapter relating to offenses against minors, cannot affect its construction, even if the legislature had not declared the purpose of making these laws conform to the compulsory-education laws of the state.

The legislative intent further appears in the act of May 10, 1910 (101 O. L., 310), wherein Sections 7765, 7766 and 12975 were amended in one and the same act.

The defendant having admitted that the items of the account contained in the amended petition were correct, there was no disputed question of fact to be submitted to the jury, and the trial court properly directed a verdict for the plaintiff.

Judgment of the court of appeals is reversed, and that of the common pleas court affirmed.

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

Nichols, C. J., Jones and Johnson, JJ., concur.


author: Johnson, J.

text:
    The Winous Point Shooting Club v. Slaughterbeck et al.

      Right of public to fish — In waters of Lake Erie and its bays— Not limited to navigable portions.

    1. The right of the public to fish in the waters of Lake Erie and its bays, is as fixed and complete as if those waters were subject to the ebb and flow of the tide. (Sloan v. Biemiller, 34 Ohio St., 492, approved and followed.)
    2. The public rights of fishing in the waters of the open navigable public bays of Lake Erie, are not limited, within such public bays, to the particular portions thereof which are navigable.
    (No. 15367
    Decided April 3, 1917.)
    Error to the Court of Appeals of Ottawa county.
    The plaintiff in error, a corporation organized under the laws of Ohio, for the purposes, among others, of hunting, fishing, trapping and the protection of fish and game, and for lawful shooting purposes, brought suit against the defendants in error in the court of common pleas of Ottawa.
    In its petition it alleges that in furtherance' of said purposes it has purchased, at large expense, large tracts of land in Sandusky and Ottawa counties, Ohio, and is, and has been for many years, the owner in fee simple and in possession thereof (the lands being described in a general way in the petition) ; that said lands are marsh lands, in large part covered by water, and are wholly unsuited for agricultural purposes, but during a large portion of each year great numbers of wild ducks, wild geese, muskrats and other wild game and animals resort thither and remain and feed upon the same; that said marsh lands are breeding grounds for wild ducks, frogs, turtles and other wild game and animals, and the waters thereof contain large quantities of fish for food and adapted to the sport of angling, and contain large quantities of frogs and turtles for food; that said lands derive their chief value from their adaptation to the sport of hunting and fishing and to the harboring and protection of fish and game; and that during each spring and autumn said premises are the resort of wild ducks, wild geese and other wild fowl, and during the fall season plaintiff’s members hunt and fish thereon and therein in such manner as to protect the fish and game while deriving sport in the pursuit thereof.
    The petition further alleges that defendants claim some estate or interest in the aforesaid premises adverse to the plaintiff’s right, the exact nature and extent of which the plaintiff is uninformed, but they claim the right to fish at will with seines in the nonnavigable waters covering the premises of plaintiff, and with other fishing devices upon the lands of plaintiff, and to place their shanty boats and other boats upon the lands of plaintiff and in the nonnavigable waters thereon; that in the exercise of said pretended rights defendants destroy, and have destroyed, the feeding and breeding grounds of said wild game, and scare and drive the same away, and enter upon said nonnavigable waters in the night season and remove the fish from said waters and scare and drive all the game from said premises; and that if said acts are persisted in they will permanently drive away and destroy the fish and wild fowl upon plaintiff’s said premises and cause plaintiff irreparable injury.
    The prayer of the petition is that the defendants and each of them be enjoined from entering on the said premises of the plaintiff and upon the non-navigable waters thereof and upon the marshes, rivers and creeks upon the premises of the plaintiff, and from destroying and injuring the breeding grounds of said wild game and fish, and from setting, placing and drawing seines, fish nets or other fishing devices for catching fish, turtles or other animals upon said premises.
    In their answer the defendants allege “that all those waters described in plaintiff’s petition, lying west of the line drawn from Slade’s Point or Slate’s Point to a point at the east end of Eagle Island, and thence to South Point and between Squaw Island, on the south and Horseshoe Island on the west and the shore line on the north, and lying between the shores aforesaid, form part of a public bay connected with Sandusky Bay and not part of San-dusky River and Mud- Creek, and that the same is navigable in part and since the settlement of the country in that vicinity by white people, has been continuously and uninterruptedly used by the public for fishing and without objection until the plaintiff claimed the right to convert said public water into a private duck pond for the exclusive use and enjoyment of its members, and to exclude the public from the privileges of fishing therein.” Defendants admit “that they claim the right of fishing at will within the portion of the premises described in plaintiff’s petition herein set forth wherever covered by water to an extent that marketable-fish may be found therein, and * * * that the plaintiff is the owner of all the balance of the premises described in plaintiff’s petition and they deny that they have fished or intended to fish or have asserted any claim to any other part of the premises described in plaintiff’s petition.”
    In its reply the plaintiff denies that the place where the defendants were fishing is covered by navigable water, and denies that the defendants were fishing in public waters, and that the public right of fishing exists therein. Furthermore, it alleges that by consideration of the circuit court of Ottawa county, Ohio, in 1895, and of the supreme court' of Ohio, in 1897, the plaintiff was decreed to be the owner of said premises, and the public without right to fish thereon, except in the navigable waters of Mud Creek bay; and that such decision of the circuit court and of the supreme court has since been a rule of property in Ohio.
    Plaintiff further alleges in the reply that in the circuit court of the United States for the northern district of Ohio, western division, on the . . . day of January, 1908, in a certain action then pending therein, in which the State of Ohio on relation of Scott Stahl, prosecuting attorney for Ottawa county, Ohio, was plaintiff, and The Winous Point Shooting Club was defendant, the state sought to enjoin the defendant in placing stone piles upon the said premises in the water of said Mud Creek bay, for the reason that said stone piles interfered with the rights of the public to fish in said water; that it filed an answer and cross-petition in said proceeding setting forth that it was the owner of said premises, and setting forth the further rights hereinbefore set forth, and that said court decided that it owned said lands under said water, and had a right to keep and maintain said stone piles thereon, and quieted the title of the defendant in said case as against the state of Ohio and all persons claiming through or under said state, who were enjoined from interfering with the same; and that said judgment and decree remains unreversed and in full force and effect.
    And for further reply plaintiff alleges that said premises were surveyed and sold by the United States and state of Ohio, that plaintiff is the owner thereof, as alleged in the petition, and that the claim of the defendants to fish in the nonnavigable waters upon the premises of the plaintiff is a taking of private property for public use without just compensation, contrary to the constitution of this state and of the United States.
    • The court of common pleas on the trial found upon the issues joined in favor of the defendants and entered judgment accordingly. It found that the defendants, as members of the public, have the right to fish in the waters of Mud Creek bay to the line of demarcation between the water and the land, but that "nothing in this decree shall be so construed to prevent the plaintiff from reclaiming said lands, by filling in the same out to navigable water.”
    On appeal to the court of appeals that court also found the issues in favor of the defendants and dismissed the petition. This proceeding is brought to reverse that judgment.

      Messrs. True & Crawford, for plaintiff in error.

      Messrs. Graves, Stahl & Duff and Mr. Malcolm Kelly, for defendants in error.
   Johnson, J.

As shown by their answer defendants claim that the waters which are involved in the present controversy form part of a public bay connected with Sandusky bay, and not part of San-dusky river and Mud creek; that they are navigable in part, and have been continuously and uninterruptedly used by the public for fishing without objection until the plaintiff claimed the right to convert them to its own use.

Defendants claim the right of fishing within the portion of the premises above referred to, wherever covered by water, to an extent that marketable fish may be found therein. They admit that the plaintiff is the owner of all the balance of the premises described in its petition, and deny that they have fished, or intended to fish, or have asserted any claim in or to any part of the premises other than as above set forth.

On the issues made by the pleadings the court of appeals found in favor of the defendants and dismissed the petition.

There is an extensive and detailed description of the locus in quo, and its history, included in an agreed statement of facts which covers about twenty pages of the printed record.

The plaintiff is the owner of about twelve square miles of land at the west end of Sandusky bay, a large portion of which is covered by water. Mud Creek bay lies west of a line drawn from Winous Point to Squaw Island and receives the waters of Mud creek. The channel of the creek through the bay has a depth of from five to seven feet, and from the channel the shore shoals to less depths on either side, and the adj’oining land becomes low and marshy. When the water is at good stage boats drawing not to exceed three to five feet can pass over it. During the season of vegetation, between June and October, a large part is covered with aquatic vegetation. At a point near Squaw Island, about half way between the mouth of Mud creek and Eagle Island, the Sandusky river, which is a much larger stream, empties into the bay.

The contention of the plaintiff is that the public right of fishing in these waters exists only in the navigable portions thereof. The defendants do not deny the ownership of the land of the plaintiffs, but claim the right to fish within that portion of the bay where marketable fish may be found.

The waters in the particular locality involved in this case furnish an unusual example of the constant conflict between those claiming under a public right of fishing in public waters and those asserting exclusive rights under private ownership. The public rights of navigation and fishery in all public waters have long been recognized and protected in England and in this country.

Professor Angelí in his work on Tide Waters says at page 124: “Fishery in the sea, and in the waters which are made to flow inland therefrom by its egress and influence, constituting as it does, a great source of sustentation, has in all ages and in all countries been deemed of such importance, that it has ever been regarded a privilege open and common to all persons.”

The Ordinance of 1787 (Section 14, Article IV) contains a provision that “The navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.”

In referring to the title which the several states hold in. the lands under the waters of the Great Lakes, the supreme court of the United States, in Illinois Central Rd. Co. v. Illinois, 146 U. S., 387, say at page 452: “But it is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to preemption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.”

Some matters formerly much in dispute have been settled by adjudications of this court, which simplifies the discussion here.

In Sloan v. Biemiller, 34 Ohio St., 492, it is held that the rule of the English common law, that the owners of land situate on the banks of non-tidal streams, though navigable in fact, are owners of the beds of the rivers to the middle of the stream, is not applicable to the owners of land bounding on Lake Erie and Sandusky bay. The right of fishing in Lake Erie and its bays is not limited to the proprietors of the shores; and the right of fishing in these waters is as public as if they were subject to the ebb and flow of the tide. In the opinion, Judge White says, at page 513: “And although the dominion over and the right of property in the waters of the sea and its inland waters were, at common law, in the crown, yet they were of common public right for every subject to navigate upon and to fish in, without interruption. * * * They were regarded as the inherent privileges of the subject, and ‘classed among those public rights denominated jura publica, or jura communia, and thus contradistinguished from jura coronae, or private rights of the crown.’ * * * The sovereign was the proprietor of these waters, as the representative or trustee of the public. In this country the title is vested in the states upon a like trust, subject to the power vested in congress to regulate commerce. Martin v. Waddell, 16 Peters, 367, 412; McCready v. Virginia, 94 U. S. (4 Otto), 391. That fishery in such waters as Lake Erie and its bays should be as free and common as upon tide waters, and alike subject to control by public authority, is obviously just. The reasons for regarding the right as public is as great in the one case as in the other; and we have no hesitation in saying that the right of fishing in these waters is as open to the public as if they were subject to the.ebb and flow of the tide.”

In Hogg v. Beerman, 41 Ohio St., 81, it is held that land covered by the water of a navigable land locked bay, or harbor, connected with Lake Erie, may be held by private ownership, subject to the public rights of navigation and of fishery, provided the holder derives his title from an express grant made, or sanctioned, by the United States. The court say, at page 95: “Where the grantor is the government, the thing granted government property held by absolute title, and no use of the thing granted to which the public is entitled is taken away, we see no reason for denying to the grantee ownership of the thing granted. * * * As was held in Sloan v. Biemiller, 34 Ohio St., 514, the right of fishing in Lake Erie and its bays is as open to the public as if they were subject to the ebb and flow of the tide. No mere grant of the land covered by such waters destroys this public right.”

In State v. Cleveland & Pittsburgh Rd. Co. et al., 94 Ohio St., 61, it is held that the title of the land under the waters of Lake Erie, within the limits of the state of Ohio, is in the state as trustee for the benefit of the people, for the public uses to which it may be adapted. It is said in the opinion, at page 80:

“The state as trustee for the public cannot by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created.
“If it is once fully realized that the state is merely the custodian of the legal title, charged with the specific duty of protecting the trust estate and regulating its use, a clearer view can be had.
“An individual may abandon his private property, but a public trustee cannot abandon public property.”

Coming still closer to the locality involved in this proceeding, the case of Bodi et al. v. The Winous Point Shooting Club, 57 Ohio St., 226, involved practically the same questions and the same territory as are involved here, and practically the same issues were made. It was there declared:

“That the rights of navigation and fishing go together in the lakes and navigable bays of this state, has been held by this court, and seems settled. Sloan v. Biemiller, 34 Ohio St., 492.
“The navigable waters in dispute in this case, form part of a public bay and not parts of the San-dusky river and Mud creek; and the circuit court erred in holding otherwise upon the facts as found in the record. Being part of an open bay, the public has the rights of navigation and fishing in its navigable waters.”

In that case the circuit court had found in favor of the plaintiff, the club, and had enjoined the defendants from fishing in the waters described in the petition. This court modified the judgment of the circuit court. The plaintiff in error calls attention to the fact that in the entry of the judgment this court found that the circuit court erred “in enjoining the defendants below from setting fishing nets and fishing in the waters described in said order of injunction,” but that subsequently it altered that entry by the insertion of the word “navigable” before the word “waters.”'

There was in that case a finding of facts by the circuit court, which contained a very elaborate description of the premises of the plaintiff and of the part in which the defendants claimed the right to fish. It disclosed also that defendants disclaimed any right to fish upon other parts of the club’s premises. We think it is clear from a reading of the record in that case that the insertion of the word “navigable” in the entry.of this court was made so as to prevent the implication that the defendants were held to be entitled to fish on the premises of the plaintiff in portions of the San-dusky river outside of the open public bay; or in the creeks and ponds on the territory of the club adjoining the bay. But it is clear that the specific thing that the court decided, and which is the important point in this case, is, that the navigable waters in dispute form part of a public bay and not part of Sandusky river and Mud creek, and that the circuit court erred in holding otherwise upon the facts found in that court.

Subsequently the plaintiff brought suit against Jeppe Casper sen and others, in which it asserted the same rights and sought the same relief as it had asked for in the Bodi case. The club was still of the opinion that the territory in question was a part of Sandusky river and Mud creek. By agreement of the parties the finding of facts made by the circuit court in that case is included in the record in this case. In its conclusion of law the circuit court found: “That all those waters lying west of a line drawn from Slade’s Point, or Slate’s Point, to a point at the east end of Eagle Island and thence to South Point, and between Squaw Island on the south, Horse Shoe Island, on the west, and the shore line on the north, and lying between the shores aforesaid, form part of a public bay, and are not parts of the Sandusky River and Mud Creek; and being parts of an open bay, and navigable in part as aforesaid, the defendants as> members of the public have the rights of navigation and fishing in said waters. But the defendants and the public have no right in or upon any of said lands not covered by water to an extent that marketable fish may be found therein.”

The judgment of the circuit court in that case was affirmed by this court, 66 Ohio St., 687, on authority of Bodi et al. v. The Winous Point Shooting Club, supra. The judgment of this court in that case was affirmed by the supreme court of the United States, Winous Point Shooting Club v. Caspersen, 193 U. S., 189, in which case the plaintiff in error asserted that the judgment that said waters are not those of Sandusky river and Mud creek, but those of an open and public bay in which the public had a right of fishing, was in contravention of the constitution of the United States, in that plaintiff was deprived of its property without just compensation.

It will be observed that the conclusion in the Casper sen case was that the waters in question formed part of a public bay and not parts of San-dusky river and Mud creek, “and being parts of an open bay, and navigable in part as aforesaid, the defendants as members of the public have the rights of navigation and fishing in said waters.” Having found that the waters in question are not parts of the river and creek, but are parts of an open bay, navigable in part, the court then states the clear and distinct conclusion, “that the defendants as members of the public have the rights of navigation and fishing in said waters.” The connotation is evident that in an open public bay, which is navigable, the public rights of fishery inhere in the entire open public bay, not limited within that bay to the particular portions which are navigable. To hold otherwise would not only give rise to innumerable and unceasing disputes as to whether in the exercisé of the public right there were in particular instances wrongful encroachments beyond the navigable portion, although within a bay, but would also place an unwarranted limitation upon the right of the public in the public bays and waters of the state. The fact that the bay — the waters — the situs — is public, is itself sufficient to fix the rights of the public therein.

The second part of the syllabus in the Biemiller case, supra, reads: “The right of fishing in Lake Erie and its bays, is not limited to the proprietors of the shores; and the right of fishing in these waters is as public as if they were subject to the ebb and flow of the tide.” It will be observed that there is here no attempt to make limitations upon any particular part of the bay or the lake.

In Hogg v. Beerman, supra, it is said: “The private grantee of the land cannot do anything that will interfere with the channel, or hamper the passage of water craft through it. But he may, without the limits of the channel, erect fishing houses or such other structures as his means and the depth of water will permit; he may convert shallow portions into cranberry patches; he may fill up other parts and make solid ground. Although such action by him may lessen the water surface available for the fishing boats, the fishermen cannot complain. Such public right to fish always yields to any permanent improvement by the owner of the land on which the water rests.”

The only possible inference from this language is that any portions of the public bay which may be without the limits of the navigable channel, and upon which the improvements referred to have not been made, are subject to the public right to fish.

It is everywhere conceded that the right of navigation is the superior right in navigable waters. In 11 Rui. Case Law, 1036, it is said: “The reason for the superiority of the right of navigation fnay be found in the circumstance that the piscatorial rights in the water may, as a general proposition, be exercised at numerous places in the water, but navigation is generally confined to certain definite localities. The mutual adjustment of the two rights in order that both may be reasonably enjoyed, therefore, requires that in the places available for navigation the fishing rights be secondary.”

We have no doubt of the praiseworthy motives which actuate the plaintiff company in many of its operations, as claimed by it. Such private rights as it has in the property, which it has properly acquired, should and will be protected, but we think it clear that they do not extend to the limits contended for, or permit building up of a monopoly in the public waters referred to.

The governmental power to prescribe regulations of fisheries in public and private waters resides in the legislature. It may adopt appropriate provisions concerning fishing and for the preservation of healthful fish and waters for the public benefit. It may of course prevent fishing in spawning grounds. There has already been legislation touching the subject, and it is to be presumed that as conditions require the general assembly will further safeguard the public, and likewise, in a spirit of justice and equity, provide for the protection of the legitimate rights of property owners.

Judgment of the court below will be affirmed

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones and Matthias, JJ., concur.


author: Matthias, J.

text:
    The City of Cincinnati et al. v. Polster et al.

      City sewer assessment — Local drainage by private sewer—Exemption from assessment warranted only — When local drainage and right of maintenance permanent.

    1. Where, pursuant to appropriate legislation regular throughout, an assessment is levied upon lots and lands for the construction of a sewer in a city street, and exemption of a lot abutting thereon from assessment for the construction thereof is claimed on the ground that it is provided with local drainage, the burden is upon the owner to show that local drainage has been provided which is adequate to meet the needs of such lot both for surface drainage and the usual purpose of sewerage.
    2. A lot is not so provided with local drainage as to exempt it from assessment for the construction of a sewer in the street upon which such lot abuts, where it appears that its only drainage facilities are afforded by a privately constructed drain through the adjoining premises over which the owner of the lot in question has no control and no right to use and maintain such sewer.
    3. Exemption of such lot from assessment on the ground of present adequate drainage is warranted only when it is shown that the drain whereby it is served is permanent in its character of construction and the owner of such lot has a right to permanently maintain and use it.
    (No. 15300
    Decided April 3, 1917.)

      Error to the Court of Appeals of Hamilton county.
    The defendants in error, John G. Polster, Charles Lobitz, Frank Allgeier and others, brought action in the court of insolvency of Hamilton county wherein they asked an order perpetually enjoining the collection of an assessment theretofore levied upon their severally-owned certain city lots to meet the cost and expense of constructing a sewer in Fairview avenue in the city of Cincinnati, upon which said lots fronted and abutted. The court of insolvency granted the relief prayed for. The case was appealed and the court of appeals entered a similar decree, to which error is prosecuted.
    The bill of exceptions contains a statement of facts, which the parties agree embraces all the evidence offered by either party on the trial in the court of appeals. The material and essential facts contained therein are as follows:
    Fairview avenue, Westview avenue and McMillan street are public streets of said city, and the lots in question in this case front on Fairview avenue. The defendants in error Charles Lobitz and Sophia Lobitz acquired their said lot by deed which contained a clause conveying: “also a right two feet wide for drain and sewer through sewer now constructed, being forty-eight (48) feet south of Straight street, and running from the lot above described to Westview avenue, for a period extending one year after sewer is ready for use in Fairview avenue.” Said lot is now drained by a sewer referred to in the deed, which is constructed through a lot west of the Lobitz property and empties into the public sewer in Westview avenue, the property through which said sewer is constructed not being owned by either Charles Lobitz or Sophia Lobitz. More than one year has elapsed since the completion of the public sewer in Fair-view avenue.
    The defendant in error Frank Allgeier acquired title to his lot by deed which contained a clause conveying to the grantee the right to lay and maintain a sewer pipe from said lot through the adjoining premises of the grantor to Westview avenue, but expressly providing that “the right- to so use and maintain said sewer pipe or drain shall cease as soon as a public sewer is laid in Fairview avenue in front of said fifty-foot lot.” Said property is now drained by the sewer referred to in said deed, which sewer is constructed through a lot not owned by Frank Allgeier and empties into the public sewer in Westview avenue.
    The lot belonging to defendant in error Herman Suer is drained by a sewer constructed therefronq southwardly to McMillan street through property not owned by Herman Suer; but he was the owner thereof at the time of the construction of the sewer therein.
    The city of Cincinnati made no objection to the drainage of said properties in the manner in which they are now drained, nor has the owner of the properties through which said several sewers are constructed made objection to the use thereof by the defendants in error. Said sewers were in use prior to the passage of the legislation' for the construction of the Fairview avenue sewer by the city, and have been continuously used for the purpose of conducting drainage and sewage from said properties, and neither of said properties is connected with the public sewer in Fairview avenue. The city of Cincinnati passed the necessary legislation, and improved Fairview avenue by constructing and laying therein a public sewer in front of the said lots of the several defendants in error, and for the purpose of paying a portion of the cost of said improvement levied an assessment against each front foot of the property of said defendants in error in the sum of 2.685 dollars. In anticipation of the collection of said assessment the city issued its bonds in an amount equal to the assessments not paid in cash, and interest on the same. The Fairview avenue sewer was completed by the contractor and accepted by the city prior to the date of filing the petition in this case.

      Mr. Charles A. Groom, city solicitor, and Mr. Frank K. Bowman, assistant city solicitor, for plaintiffs in error.

      Messrs. Renner & Renner, for defendants in error.
   Matthias, J.

The defendants in error seek relief from the assessment levied upon their several properties for the construction of the Fairview avenue sewer upon the ground that each of said lots is now and was at the time of the passage of the legislation for the construction of the Fairview avenue sewer provided with adequate drainage, and, therefore, that no special benefit accrued thereto by reason of the construction of that sewer. The defendants in error base their claim for exemption from such assessment upon the following provisions of Section 3819, General Code: “Assessments levied for the construction of main sewers shall not exceed the sum that in the opinion of council would be required to construct an ordinary street sewer or drain of sufficient capacity to drain or sewer the lots or lands to be assessed for such improvement, nor shall any lots or lands be assessed that do not need local drainage or which are provided therewith.”

Each of the lots in question fronts upon Fair-view avenue, but at the time of the construction of the sewer upon that avenue, and for some time prior to the passage of the legislation therefor, drainage and sewer accommodation was afforded by separate drains from each lot, privately constructed through property of persons other than the owners of the lots in question, to a public sewer in another street. The record discloses that the right to so use the adjoining property was but temporary, and was made so in anticipation of the construction of a public sewer in Fairview avenue. This is particularly true with reference to the Lobitz and the Allgeier properties. Allgeier’s right to use the private drain from his premises, under the express terms of the clause in his deed granting the right, was to cease “as soon as a public sewer is laid in Fairview avenue in front of said fifty-foot lot.” The right to use the privately-constructed drain which served the lot of the defendant in error Lobitz was limited, by the express terms of the clause in his deed granting the right, to “one year after sewer is ready for use in Fairview avenue,” which time had expired. It does not appear from the record that the defendant in error Suer had any right for any period of time to use and maintain the privately-constructed drain which serve's his property. Each of the drains serving the several premises passes through private property, and although it appears that thus far the owner of the property through which such drains are constructed has made no objection thereto, yet the use clearly appears to be without right and therefore may be terminated by the owner at any time.

The contention made on behalf of the city is that before a property owner may be exempt from the payment of an assessment for the construction of a sewer on a street upon which his property fronts, upon the ground that such property is already provided with local drainage, he must show that the method of drainage provided, and the right to use the same, are permanent in character, and not subject to discontinuance at the option and upon the order of the owner of the property through which such drain or sewer is constructed. Counsel for the city find support for this contention in Hildebrand v. Toledo, 6 C. C, N. S., 450; Ely v. Elyria, 15 C. C, N. S., 133; Frey v. Millikin, 15 O. D., N. P., 122, and Wilson v. Cincinnati, 5 N. P., 68.

The theory upon which such an improvement is authorized is that it is a sanitary measure, the primary object being the promotion of the health and welfare of the community However, each lot for which drainage is afforded by the furnishing of sewer facilities receives a special benefit for which it is required to pay. This sewer was constructed primarily as an improvement of Fairview avenue and to provide drainage and sewer facilities for properties abutting thereon. Before any such lot upon which an assessment has been regularly levied for the construction of such improvement can be relieved from that assessment, upon the ground that such lot does not need local drainage or is provided therewith, these facts must be made to appear, and the burden is upon the owner to establish them to warrant the exemption from such assessment. That, rule was well stated by the judge rendering the opinion in the case of Ford et al. v. Toledo et al., 64 Ohio St., 92, who also very pertinently observed, at page 98: “To authorize an assessment for sewer purposes, it is not necessary that the property should have immediate need for the use of the sewer * * * And, the length of time the ground may probably remain vacant, only goes to the urgency of the need and the measure of the benefit.”

It was held by the court in that case that the local drainage contemplated by the exemption clause of Section 3819, General Code, is one that provides the lot or lands with “adequate” drainage for the necessary and usual purposes of sewerage. It is not sufficient to warrant exemption from assessment that the property owner has provided some method of drainage satisfactory to himself, regardless of its character or mode of construction. A drain constructed temporarily and in anticipation of the construction of a permanent sewer might serve the purpose fully for the time being, and yet not be such as to warrant the conclusion that the lot served thereby is provided with local drainage. A lot so drained may not have imperative immediate need of the drainage to be furnished by the proposed sewer, just as a vacant city lot has no such immediate need; but neither should be exempt from the assessment on the sole ground that a necessity for the sewer does not exist. Just as it is essential that drainage provided in order to exempt a lot served thereby from assessment for the construction of a sewer in a street upon which such lot abuts shall be permanent in its character of construction and fully meet the demands of proper sanitation, so is it also essential that the owner shall have a vested right to permanently maintain and use such sewer for the purpose of draining his lot. It is not sufficient that he have a mere present right to use the drain leading from his premises through the premises of another, with no authority over or control of the same. Indeed it appears in this case that the only right granted the owners of the lots in question no longer exists. The right to use such drain having ceased, it cannot be said that the lots are provided with local drainage so as to be exempt from assessment for the construction of the Fairview avenue sewer.

In the case of Wewell v. City of Cincinnati, 45 Ohio St., 407, which is urged in support of the contention of defendants in error, it appears that the sewer into which the properties claimed to be exempt were drained was constructed through private property; but no question whatever seems to have been raised in that regard. Furthermore, that sewer had been constructed and in use more than forty years when assessments were levied for a new sewer, and “was constructed in parts, portions by the city, and portions by private persons through their own property.”

It is our conclusion that the lots of these defendants in error were not exempt from the assessment levied upon them and that the court of appeals was in error in awarding a perpetual injunction.

Judgment reversed.

Wanamaker, Jones, Johnson and Donahue, JJ-, concur.