author: Minshall, C. J.

text:
    The Kinnear Manufacturing Co. et al. v. Beatty.

      Vacation of street or alleys — Vacated portion reverts to abutting lot owners — Right of property owner to access through reverting property — Injunction of obstruction — Respective rights of adjacent lot owners — Right of way granted by council — Section 2654, Rev. Stat.

    1. Where a street or alley is vacated by a city, the vacated portion reverts to the abutting lot owners, subject, however, to such rights as other property owners on the street or alley may have therein, as a necessary means of access to their property.
    2. A property owner on a street or alley, a portion of which. other than the part on which he abuts, is vacated by the city-council, has no right to enjoin the obstruction of the vacated portion by the owners to whom it reverted, where he has reasonable access to his property by other streets and alleys, although the distance he may have to travel in some directions may be greater than before the vacation. To entitle a party to any relief in such cases, the inconvenience he suffers must differ in hind from that of the general public, and not only in degree.
    3. The rights of the lot owners in an addition, on the plat of which the streets and alleys are indicated as dedicated to public use, are no greater than, nor different from, the rights of other lot owners upon other streets of the city.
    4. The provision in Section 2654, Revised Statutes, that when a street or alley is vacated by a city council, “the right of any lot owner shall not be impaired thereby,” simply preserves such rights as the lot owner had in the street or alley by existing law. It creates no new rights.
    (Decided November 19, 1901.)

      Error to the Circuit Court of Franklin county.
    The plaintiff below, Julia Beatty, brought suit in the common pleas to enjoin the erection of a certain building by the Kinnear Manufacturing Company upon the vacated portion of a certain alley in the city of Columbus. Her petition is as follows :
    Plaintiff says that William A. Neil, in his lifetime, platted and laid out a subdivision of real estate bounded by Lincoln street on the south, Fourth street on the east, Hamlet street on the west and Warren street on the north, in Columbus, Ohio, a copy of which plat is hereto attached marked “Exhibit A'5 and made a part hereof.
    That on said plat there is an alley known as Cedar alley, running from Hamlet street on the west to Fourth street, formerly known as Lazelle avenue, in the east, immediately in the rear of plaintiff’s premises and is designated and delineated on said plat of the width of 22 feet and six inches.
    That the said William A. Neil, during his lifetime, and the defendants, Walter N. P. Harrow, Theodore 31. Livesay and Charles S. Hamilton, as trustees under his will, since his decease, have sold and conveyed various lots to various parties, according to said plat of said addition and in reference to the location of the various lot lines and streets and alleys as thereon designated on said plat; that among the parcels so sold and conveyed by the defendants to Coleman and by said Coleman conveyed to this plaintiff, lot number 63 of W. A. Neil’s subdivision, which was conveyed to this plaintiff, as the same is numbered and delineated upon the recorded plat thereof of record in Plat Book number (3), page 258, above referred to; that this plaintiff was put in possession thereof and has erected valuable improvements therec¡n to the amount of about $3,500.00; that said improvements were erected by this plaintiff thereon with reference to the lines of the streets and alleys as designated and delineated on said plat; that the said prem ises of the plaintiff are drained by a sewer which runs on the south side of said premises and located ir Cedar alley, running thence eastward in said alley to Fourth street; that said sewer is a valuable and lasting improvement and appurtenance to plaintiff’s property; that the defendant, The Kinnear Manufacturing Company, a corporation, has taken possession of the east one hundred and nine feet of said alley and are now erecting a large building thereon, the exact nature of which plaintiff is unable to state; that said defendant company has a large force of men who are engaged in laying the foundation and erecting said building, completely and permanently obstructing said alley and that the said defendant, its agents and employes, have dug the cellar and are now laying the foundation of stone and brick and that said defendant, its agents and employes, unless restrained will continue to erect said building; that said defendant company is now erecting a large manufacturing building across and over and on and through said alley ; that said alley will, unless the said company are restrained, be permanently closed and the ingress and egress of this plaintiff to and from her premises will be materially and irreparably interfered with; that the premises of said plaintiff will be irreparably damaged and that the amount of said damage cannot be ascertained in law;.that the said alley, known as Cedar alley, has been in public use by the citizens of the vicinity and at large for eighteen years; that all the streets within said plat aforesaid have been improved with reference to the location of said alley and the access to and from the same; that said defendants, its agents and employes, threaten to permanently close the same and deprive this plaintiff and the adjoining lot owners and the traveling public from using the same and traveling over it, for the purpose of reaching the lots of said, addition and the improvements thereon; to give notice to the defendants for an application for a restraining order would materially increase the damage to this plaintiff caused by such delay.
    Wherefore plaintiff prays that the said defendants and each of them, and their unknown agents and employes or any claiming by, through or under them, be restrained from enclosing said alley and the ingress and egress thereto, and that they be required to restore said alley to its former condition, and that on a final hearing a permanent injunction be granted this plaintiff forever, and that the said defendants be forever enjoined from interfering with the use and enjoyment of said public highway, and for all other and proper relief.
    “Signed by attorneys.”

      EXHIBIT “A.”
    W. A. Neil’s subdivision of ground lying between Lincoln and Warren streets and Hamlet street and Laz elle • avenue.
    ■WARRBN ST.

    The Kinnear Manufacturing Company and the trustees of the will of William A. Neil, deceased, filed separate answers. These answers are substantially the same. That of the manufacturing company is as follows:
    Now comes The Kinnear Manufacturing Company, one of the defendants herein, and says that it is a corporation organized and existing under the laws of the state of West Virginia.

      Further answering said defendant admits that William A. Neil, now deceased, in his lifetime platted and laid out the subdivision of real estate, as alleged in the petition and according to the plat, a copy oí which is attached to said petition.
    Further answering this defendant admits that the said William A. Neil, during his lifetime, and after his death the trustees, as hereinafter set forth, sold and conveyed various lots in said addition to various parties and among the same conveyed to the plaintiff lot 63 in said addition, and that said plaintiff is in possession of said lot’ 63 and has erected buildings thereon.
    Further answering this defendant admits that ir has taken possession of the east 109.80 feet of what was formerly Cedar alley, as appears on said plat, running west from Fourth street said distance, and is now excavating for the foundations of a building and intends to erect thereon a building.
    Further answering this defendant denies each and every fact and allegation in the petition contained, not herein admitted.
    Further answering this defendant says that the sewer in the east 109.80 feet of Cedar alley is a private sewer, beginning at Fourth street and drains west toward Hamlet street. Defendant further says that the erection of a building upon said portion of said alley will in no wise interfere in the use by plaintiff of said sewer or any part thereof.
    This defendant, further answering, says, that on or about the third day of January, 1897, William A. Neil, died testate, and that on the sixth day of January, 1897, his will was duly admitted to probate in the probate court of Franklin county, Ohio, and that by said will he appointed as his trustees the defendants, Walter N. P. Darrow, Theodore M. Live-say and Charles S. Hamilton, which trustees on the eighth day of January, 1897, were duly qualified and appointed as such trustees.
    By the terms of said will the said William A. Neii devised all of his real estate, including all of the land, a plat of which is attached to the petition, to said trustees in fee simple, with full power to contract with, convey the same and subdivide the same.
    Among the property devised by the said William A. Neil, deceased, to said trustees, were lots 64, 65, 66, 73, 74, 75 and 76 of the property so platted.
    That on or about the twentieth day of November, 1899, the defendant trustees, being the owners in fee simple of the last named lots, filed with the city council o.f the city of Columbus, Ohio, a petition praying for the vacation of that portion of Cedar alley extending through said premises and bounded on the north and south by said lots for a distance of 110 feet west from the west line of Fourth street.
    That notice of the pendency and prayer of said petition was published for six consecutive weeks prior to the nineteenth day of February, 1900, in the Ohio State Journal, the Columbus Citizen and the Columbus Express, three newspapers published in and of general circulation in the city of Columbus, Ohio, and of which the Columbus Express is a newspaper published in the German language.
    That on the nineteenth day of February, 1900, the board of public works of said city of Columbus, recommended to the city council of said city an ordinance vacating said portion of Cedar alley, as prayed for in said petition, which ordinance was on the nineteenth day of February, 1900, duly passed by said city council, which ordinance, being number 16,524, provided that besides vacating said portion of said alley that the said city reserved the right to use and maintain the sewer located therein.
    That thereafter said ordinance was on the first day of March, 1900, duly approved by the mayor of said city, and was filed and recorded in the office of the clerk of said city.
    That thereafter publication was had of said ordinance in said three newspapers for the time and in accordance with the statute in such cases made and provided.
    In said ordinance said city council found that it was satisfied that there was good cause for such vacation, and that the same would not be detrimental to the general interest, a copy of which ordinance is hereto attached, marked Exhibit “A,” and made a part hereof.
    Thereafter said trustees made a subdivision of said lots 64, 65, 66, 67, 73, 74, 75 and 76, including in such subdivision the vacated portion of Cedar alley, as aforesaid, which plat was duly signed and acknowledged by said trustees, was duly approved by the chief engineer of the city of Columbus, Ohio, and an ordinance accepting the same was duly recommended by the board of public works of said city and duly passed by the city council, and thereafter signed by the mayor of said city and publication made thereof in said three newspapers according to law. That the plat of said subdivision has been recorded with the recorder of Franklin county, Ohio, a copy of which plat is hereto annexed, marked Exhibit “B,” and made a part hereof.
    By said last plat said trustees dedicated for street purposes an alley fifteen feet in width and running from Warren to Lincoln streets on a line 109.80 feet west of Fourth street and parallel with the west line of Fourth street, a copy of which plat, marked Ex-Mbit “B,” is hereto attached and made a part hereof. Said alley runs from Lincoln street to Cedar alley and on the east line of said lot 68 to Warren street.
    This answering defendant further says that the lot, as aforesaid, owned by the plaintiff, is bounded on the south by Cedar alley and on the north by Warren street, on the east by said fifteen foot alley, on the west by lot No. 62 on the plat of said William A. Neil, deceased.
    Further answering this defendant says that the plaintiff has egress and ingress to and from her said property on Warren street on the north and Cedar alley on the south; said fifteen foot alley on the east, and that egress and ingress to and from Cedar alley on the south of the lot owned by plaintiff may be had by the said fifteen foot alley dedicated by said trustees, both to and from the east portion of said Cedar alley, north to Warren street and south to Lincoln street, and on the entire east line of said lot 63 by said fifteen foot alley.
    This answering defendant says that the plaintiff does not own'any lots abutting upon or adjoining to the portion of said Cedar alley so vacated, and that said plaintiff has no rights or interest in and to the portion of Cedar alley so vacated.
    This answering defendant further says that by reason of the bounding of plaintiff’s lot by said Lincoln and Hamlet streets and Cedar alley and by the dedication of said fifteen foot alley on the east line of lot 63, as aforesaid, said plaintiff has reasonable means of egress and ingress to and from her said premises in all directions.
    This answering defendant further says that on the fifth day of February, 1900, said trustees agreed to convey by warranty deed all that real estate in the city of Columbus, Ohio, beginning at the northwest corner of Fourth, and Lincoln streets in the city of Columbus, Ohio; thence west on the north line of Lincoln street 109.80 feet to a point; thence north on a line parallel with the west line of Fourth street to a point in the south line of Warren' street; thence easterly on said line to the northeast corner of Warren and Fourth streets; thence southerly upon the west line of Fourth street to the place of beginning, containing said vacated portion of said alley and lots 65, 66, 67, 74, 75 and 76, and parts of lots 64 and 73 of said William A. Neil’s addition.
    Said property was purchased by said defendant for the purpose of erecting buildings thereon and was. agreed to be conveyed by said trustees to said defendant for that purpose.
    Thereafter this answering defendant took possession of said premises so agreed to be conveyed by said trustees and proceeded to make the excavations and prepare for the erection of buildings thereon as heretofore stated.
    Further answering this defendant says that it has made a contract for the erection of the buildings upon said premises so agreed to be conveyed; that materials for said building have been ordered, and that great and irreparable injury will result to it if any restraining order or injunction is granted as prayed for by the plaintiff; that said contract for such building amounts in the aggregate to about the sum of twelve thousand dollars.
    Wherefore, this answering defendant prays that it may go hence and recover its costs.
    Signed by attorneys.

      Part of Exhibit B, referred to in answer, necessary to an understanding of the case :

    The plaintiff demurred to both answers; the demurrers were overruled; and the plaintiff not desiring to plead further, judgment was entered by the
      common pleas dismissing the petition. On error to the circuit court, the judgment was reversed, and cause remanded for further proceedings; and error is prosecuted here to reverse the judgment of the circuit court and affirm the common pleas.

      Arnold, Morton &\ Irvine and Watson, Burr & Live-say, for plaintiffs in error.
    1. The rule is now well established in Ohio that upon the vacation of a street the title to the vacated portion reverts to the abutting lot owners. Stevens v. Shannon, 3 Circ. Dec., 386, 6 C. C. R., 142; Kerr v. Commissioners, 51 Ohio St., 593; West v. Atcheson. 34 W. L. B., 36, 37.
    2. It is also settled in Ohio that upon such vacation the duty of the public to maintain and keep in repair such vacated street ceases. McQuigg v. Cullins, 56 Ohio St., 649; Crawford v. Delaware, 7 Ohio St., 459; Jackson v. Jackson, 16 Ohio St., 163.
    3. The rule is also established that after vacation, while the public duty to maintain and repair ceases, there is a private right of way or easement in certain lot owners which remains. Furniture Co. v. Railroad Co., 9 Dec., 674; 7 N. P., 640; Elliott on Roads and Streets (2 ed.), Secs. 703 and 877.
    While it is recognized that there is this private right of way or easement, existing after vacation, none of the reported decisions of the Supreme Court oí Ohio undertake to define the limitations of this right or the circumstances under which it exists.
    4. The . statutory enunciation, in section 2654 of the Revised Statutes, providing that upon vacation of a street the right of way or easement therein of any lot owner shall not he impaired is to all intents and purposes a reiteration of the common law rule, and is to be construed with the limitations and effect of that rule.
    5. The general rule is universally recognized that the injury to the lot owner must be different both in degree and kind from that to the general public, and that mere proximity to the vacated or obstructed portion of the street, while the injury resulting may Da different in degree, is not different in kind from the injury to the general public, and gives no rights different from the general public. Elliott on Roads and Streets (1 ed.), p. 662; 24 Am. & Eng. Enc. Law (1 ed.), 121; Houck v. Wachter, 34 Md., 265; Davis v. Commissioners, 153 Mass., 218; Quincy Canal v. Newcome, 7 Met., 283; Chicago v. Association, 102 Ill., 379; Railway Company v. Thompson, 34 Fla., 346.
    This doctrine is enunciated or recognized in the following cases and authorities: Littler v. Lincoln (City) 106 Ill., 353; East St. Louis v. O’Flynn, 119 Ill., 200; Parker v. Bishop, 146 Ill., 158; Shaw v. Railroad Co., 159 Mass., 597; Smith v. Boston, 7 Cush., 254; Brakken v. Railway Co., 29 Minn., 41: Shaubut v. Railway Co., 21 Minn., 502; Bailey v. Culver, 84 Mo., 531; Heller v. Railroad Co., 28 Kas., 625; Railway Company, In re, 10 Circ. Dec., 286; 19 C. C. R., 308; Jones on Easements, Secs. 546 and 550; Stanwood v. City of Malden, 16 L. R. A., 591 (Mass.); Buhl v. Depot Co., 23 L. R. A., 392 (98 Mich., 593); Whitsett v. Railroad Co., 10 Col., 243.
    This rule requiring an injury to be different both in kind and degree from the general public is well established, and the only question about the rule is in its application by the courts and the limitations placed upon it.
    The Supreme Court of Ohio, in no reported case, has had occasion to consider this rule nor the limitations to be placed upon it. It has been recognized by the circuit court of Hamilton county in Railway Co., In re, supra.

    6. It is fully established that no matter how near the abutter’s property may be to the obstruction, the fact that he suffers greater inconveniences than the general public or that he is required by reason of the obstruction to take a more circuitous route to reach a given point, while different in degree is not different in kind, from the injury suffered by the public generally. Jones on Easements, Sec. 550; Patton v. Railroad Co., 55 Ohio St., 659; Heller v. Railroad Company, 28 Kas., 625; Stanwood v. City of Malden, 16 L. R. A., 591 (Mass.); Polack v. Trustees, 48 Cal., 490; Coster v. Mayor of Albany, 43 N. Y., 399; Cassell v. Berkshire, 11 Gray, 26; Kimball v. Homan, 74 Mich., 699; Bailey v. Culver, 84 Mo., 531; State v. Elizabeth (City), 54 N. J. L., 462; Glasgow v. St. Louis, 107 Mo., 198; Fearing v. Irwin, 55 N. Y., 486; Barr v. Oskaloosa (City), 45 Ia., 275.
    The above rules will apply equally to any private right of way or easement.
    7. The right of a lot owner to object to the vacation of a portion of a street depends upon whether his lot is abutting upon or in physical contact with the vacated portion, or whether his access is entirely or substantially cut off by reason of the vacation; that he may be inconvenienced, or that he may have to go by a more circuitous route to reach a given point, does not make the injury to him different in kind from the general public. Elliott on Railroads, Sec. 1086; Morgan v. Railway Co., 64 Ia., 589; LeClercq v. Gallipolis, 7 Ohio (pt. 1), 217; Aram, Trustee, v. Shallenbarger, 41 Cal., 449; Hawley v. Baltimore, 33 Md., 270; Berkshire, 11 Gray, 26; Insurance Co. v. Stevens, 101 N. Y., 411; Smith v. Boston, 7 Cush., 254.

      8. There is a class of cases which hold that the right of property owners abutting on a street, a portion of which is obstructed or vacated, to object to such vacation or obstruction, does not extend beyond the next connecting street or way. Elliott on Railroads, Section 1086; Jones on Easements, Sec. 550; Dantzer v. Railway Co., 141 Ind., 604; Coster v. Albany, 45 N. Y., 499.
    9. The rule, supported by reason and the best authority, is that lot owners have no greater rights than the general public in the streets in a subdivision in which their lots are situated, excepting within the general rules and limitations thereon, herein set forth. Railway Co., In re, 10 Circ. Dec., 286; 10 C. C. R., 308.
    10. In the opinion in the case of McQuigg et al. v. Cullins, 56 Ohio St., 649, Spear, J., said: “Where, however, another road, reasonably suitable to answer the needs of the complaining party has been established, the chancellor might properly refuse the order of injunction against closing up the old road.”
    11. Some cases hold that the remedy of the property owner is in damages and not by injunction. Sully v. Schmitt, 147 N. Y., 248.

      W. M. Thompson and Frank T. Glarke, for defendant in error.
    Now, we contend that when this lot was conveyed to the defendant in error, she took an easement in the whole of this alley as it furnished the only means of ingress and egress to the rear of said lot from Hamlet and Lazelle streets; that said easement was a valuable appurtenance to said lot and was, and is, as much property as the ground bounded by the lot itself, and that this property right can not be taken without first compensation being paid therefor.

      It is further admitted that the defendant in error has erected lasting and valuable improvements thereon with reference to the streets and alleys as designated on said plat. The easement in this alley is a continuous easement, but that fact is immaterial, as continuous and discontinuous easements do not obtain in Ohio. Baker v. Rice, 56 Ohio St., 463; Lewis on Eminent Domain, See. 114.
    Streets and alleys thus platted in connection with the lots sold assume much the character of township roads, as to their character of private ways. Foster v. Wheeler, 5 Ohio St., 286.
    When Wm. Neil platted this subdivision Cedar alley became a private way for all the lot owners as an entrance to the rear of their lots, and the vacation of this alley by the council of the city of Columbus did not in any way impair this private way or easement. Revised Statutes, sections 2652, 2654.
    It is a well known fact that access to the rear of lots adds very materially to their value. Crawford v. Delaware, 7 Ohio St., 459.
    That which is appurtenant to a lot is part of the lot itself and an injunction will be granted to restrain a deprivation thereof. If the contention of the plaintiffs in error are true then the city of Columbus might vacate a portion of the alley connecting with Hamlet street and thus deprive the defendant in error of all access to the rear of her lot.
    If a plat is exhibited upon which a way is laid down and a contract of purchase is entered into, the purchaser may claim a right of way according to the specifications of the plat. Giauques Laws of Roads, Sec. 502 and note.
    Proceedings to vacate were not regular and were not such as is provided for in sections 2654,2655,2656, ■2657, Revised Statutes. Stevens v. Shannon, 3 Circ. Dec., 386; 6 C. C. R., 142; Railway Co. v. Elyria, 7 Circ. Dec., 312; 14 C. C. R., 52.
    Cedar alley was a public street and had been for eighteen years duly accepted by the city and used by the public, and plaintiff purchased her lot with reference to said streets and made valuable improvements thereon, and by so doing acquired an easement in said street, and the same cannot be taken from her without compensation. Constitution, Art. 1, Sec. 19.
    If the taking of an easement without compensation is attempted injunction is the proper remedy. Hays v. Jones, 27 Ohio St., 218; Lewis on Eminent Domain, Sec. 114; Dillon on Municipal Corporations (4 ed.), Sec. 656a; Crawford v. Delaware, 7 Ohio St., 459; Le Clercq v. Trustees of Gallipolis, 7 Ohio (pt. 1), 217; Cincinnati v. Commissioners, 12 Dec. (Re.), 451; 1 Disn., 4; McQuigg v. Cullins, 56 Ohio St., 649; Field v. Barling, 149 Ill., 556 (41 Am. St. Rep., 311).
    The general doctrine is stated and many of the cases reviewed in the recent case of Dantzer v. Railway Co., 141 Ind., 604 (50 Am. St. Rep., 343).
    The general rule is followed in Railway Co., In re, 10 Circ. Dec., 286; 19 C. C. R., 308, sub nom.

   Minshall, C. J.

The case involves the right of a property owner in a street or alley, a portion of which, other than the part on which he abuts, has been vacated by the city.

William A. Neil, deceased, having in his lifetime made an addition to the city of Columbus, recorded a plat, with lots, streets and alleys indicated thereon -as shown by an exhibit to the petition. Afterwards the city council vacated a part of one of the alleys, known as Cedar alley, the vacation including the part of the alley between lots 64, 65, 66 and 67 on the north side, and lots 73, 74, 75 and 76 on the south side, of the al-. ley; the plaintiff at the time being the owner of lot 63 on which she had erected a building and otherwise improved the same, before the vacation. Afterwards his trustees made a subdivision of the lots on either side of the vacation, including in the same the vacated portion of the alley, as shown by Exhibit “B” to the answer, and dedicated an alley running north and south from Warren street to Lincoln street, on which alley the lot of the plaintiff abuts on its east side its entire length from Warren street to Cedar alley. The part of the alley south of the plaintiff’s lots is not vacated, is intersected by the new alley, and the unvacated portion extends from the new alley on the east to Hamlet street on the west. This dedication was accepted by the city and the subdivision recorded.

Afterwards the trustees sold and conveyed the lots in the new subdivision, including the vacated portion of the alley, to the manufacturing company, who was proceeding to construct its building upon it, when the suit was brought. It will be observed that the lot of the plaintiff does not abut upon any portion of the vacated alley; and that she has public access to her lot with its improvements, on the north, by a street (the front of her lot); on the east by the new alley, the entire length of the lot; and on the south by the unvacated portion of Cedar alley, the entire width of the lot. In other words she has public access to her lot on every side but one.

There seems to be no ground for questioning the validity of the proceedings whereby a portion of Cedar alley was vacated by the city council. The regularity of the proceedings is averred in the answer and admitted by the demurrer. Nor is there any for questioning the title of the manufacturing companv to the vacated portion of the alley. The trustees owned the property on each side of the vacated portioñ, and on vacation it reverted to them as the abutting owners, subject to such necessary rights of way as others may have therein. Stevens v. Shannon, 6 C. C. R., 142, affirmed by this court, Kerr v. Commissioners, 51 Ohio St., 593; and the manufacturing company by its purchase acquired all the rights of the trustees in and to the property. The question then we have to consider is, whether upon the facts admitted by the pleadings, the plaintiff, Mrs. Beatty, has such an interest in. the vacated portion of the alley, as a means of ingress and egress to her lot, as entitles her to an injunction against its being so closed, or, obstructed as to prevent its use by her as a means of access to her property. The decisions in this state have clearly established that an abutting lot owner has such an interest in the portion of the street on which he abuts, that the closing of it up, or the impairment of its use as a means of access, or the addition of a new burden, is a taking of private property for a public use, and cannot be done without compensation. McCombs v. Akron, 15 Ohio, 474; Crawford v. Delaware, 7 Ohio St., 459; Street Railway v. Cumminsville, 14 Ohio St., 523. The principle of these cases, and they have been frequently followed, applies with like justice and force where a portion of a street is obstructed or vacated, that affords the only reasonable access to the property of an owner, although his property does not abut immediately upon the obstructed portion. Abutting owners on a vacated portion of a street, would not have the right, by reason of the vacation, to isolate an owner of property on the unvacated portion. Such an owner would still have an easement, or right of way, over the vacated portion to a point where he could have reasonable access to other public ways. McQuigg v. Cullins, 56 Ohio St., 649, 654. In this case the vacated portion was the only reasonable means of access which the plaintiff had to his farm; and this fact constituted the ground of the relief granted. But where the party complaining is not an abutter upon the obstructed or vacated portion of a street, or way, and has ample means of access to his property by other streets and public ways, a very different case is presented. In such case he is simply one of the general public, suffering an inconvenience common to all, though he may by reason of proximity, suffer a greater inconvenience than others, he is in no way distinguished from them except in degree. To give the individual a right in such cases to be heard, either in a suit for damages or by injunction, he must aver and show, that the injury he suffers is different in kind from that of the general public. This he may do by showing that his easement in the street, as a means of access to his property, is impaired or destroyed. His easement, however, is limited to the portion of the street on which he abuts, or a street which affords him the only means of access to his property. Where his property is not in physical contact with the vacated portion of the street, and he has other reasonable means of access, the individual has no right of action by which he can enjoin the obstruction, or recover damages. The authorities are numerous in support of this proposition. Jones on Easements, sections 546 and 550, Smith v. Boston, 7 Cush., 254; Littler v. City of Lincoln, 106 Ill., 353; Kimball v. Homan, 74 Mich., 699; Bailey v. Culver, 84 Mo., 531; Jackson v. Jackson, 16 Ohio St., 163; Elliott on Railroads, section 1086; Buhl v. Depot Company, 98 Mich., 596. The reason is thus stated by Chief Justice Shaw in Quincy Canal v. Newcome, 7 Met., 276: "Where one suffers in common with all the public, although from his proximity to the obstructed way or otherwise from his more frequent occasion to use it, he may suffer in a greater degree than others, still, he cannot have an action, because it would cause such a multiplicity of suits as to be itself an intolerable evil.” The general principle is recognized in Jackson v. Jackson, supra, where it is said in the syllabus: “A claimant for damages in ,the alteration of a road is not entitled to recover where such alteration merely renders the road less convenient for travel, without directly impairing his access to the road from the improvements on his land.”

In all the cases in this state, where an owner of land is recognized as having such a property interest in a road' or street, as entitles him to an action for damages, or to restrain its obstruction, relate to the cases where, there was a direct physical connection between the portion of the street interfered with and the land of the complainant; or the part vacvated, furnished the only means of access to his property. In the latter case he is regarded as having an easement in the road or street, and its vacation or obstruction, affecting as it does his private rights, the injury to him is regarded as different in kind from that of the public. McQuigg v. Cullins, supra, is an instance of this kind. Where closing up a portion destroys the owner’s easement in the part not closed, and deprives him of any access to his land, the result to him is the same as if the entire way had been closed; and, in such case, he may properly be said to have an easement to his lands in the entire way, thoxigh his lands are connected with, or abut only upon a part of ir,. The other cases relate to the instances where, a city having established a grade, with reference to which the owner has improved his lot, subsequently changes it, making the access to the owner’s lot, as improved, less convenient, Crawford v. Delaware, supra, or, where, as in Street Railway v. Cumminsville, it is proposed to add a new burden to the street making access to his property by the abutting owner less convenient. In these and all similar instances, the owner is regarded as having an interest in the street in the na ture of property, that by “the justice of the constitution” cannot be taken from him against his consent until compensation has been made. It is plain to be seen that the case of the plaintiff falls within the principle of none of these decisions. Her lot is not located upon the vacated portion; and access to it is hardly in any appreciable degree impaired, is, in fact, by the new alley, increased.

We see no good reason for holding, as seems to be contended, that the rule is different as to the streets and alleys of an addition to the plat of a city; that in such case there is an implied covenant that the streets and alleys, indicated on the plat, are to remain open for public use, and that each owner of a lot in the addition may insist on this covenant. In our view the streets and alleys of every addition to a city become a part of its general system of public ways, over which the city through its council and other agents has the same control that it has over each and every part of the system; and that the rights of lot owners in the addition to the use of the streets and alleys, indicated on the recorded plat, are the same, but not greater, than are the rights of any lot owner upon a street or alley.

We are cited to some cases which seem to hold, that the right of a lot owner, in case of vacation, to the use of the street upon which he abuts, extends to the next intersecting street. This would be so, consistently with what has heretofore been said, if without such extension Ms property would be substantially isolated; otherwise we see no reason whatever for such a claim.

The provision in section 2654, Revised Statutes, that where a street or alley is vacated by a city council, “the right of way of any lot owner shall not be impaired thereby,” creates no new right — it simply preserves such right as the lot owner had in the street or alley by existing law. These have already been adverted to in this opinion. They are such rights as the owner, has in the portion of the street on which his property abuts, or may have in the street as the only reásonable access to his property. The provision was doubtless inserted to avoid the possible contention, that under the power conferred, such rights might be destroyed by its exercise. But such rights would have been preserved without this provision, as it would not have been in the power of the legislature to have authorized the city council to destroy vested rights.

The judgment of the circuit court is reversedand that of the common pleas affirmed.

Williams, Bubket, Speak, Davis and Shauck, JJ., concur.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Clinton County v. Martin.

      Defendant in criminal case — Entitled to allowance by county commissioners for legal fees paid stenographer in trial, when.

    A defendant in a criminal case is entitled to have allowed by the county commissioners and paid out of the county treasury, the legal fees paid by him to the official stenographer or assistant for a necessary transcript of the shorthand notes taken on the trial of the cause.
    (Decided November 19, 1901.)
    Error to the Circuit Court of Clinton county.
    The defendant in error was convicted of the crime of manslaughter in the Clinton county common pleas. The testimony given on the trial was taken by the official stenographer of the court and his assistant duly appointed for that purpose. In order to obtain a bill of exceptions and prosecute error the defendant procured the assistant stenographer to translate the shorthand notes of the testimony into long hand, and paid him therefor on his demand, the legal fees for such work, amounting to the sum of six hundred and seventy-five dollars. The error proceeding was successfully prosecuted, and, after the final disposition of the case the defendant presented to the commissioners of the county, for allowance and payment, his claim for the amount so paid the stenographer for the transcript; which claim the commissioners rejected. From that order of the commissioners Martin appealed to the court of common pleas, where judgment was rendered in his favor for the amount claimed, and interest. That judgment was affirmed by the circuit court, and error is prosecuted here on the ground that, under our statutes, the county is not liable.

      Thorpe é Miller, for plaintiff in error.

      Hays & Son and Sloan & Martin, for defendant in error.
   By the Court :

The appointment of an official stenographer and assistant by the court of common pleas in counties of the class to which Clinton belongs, is authorized by sections 475 of the Revised Statutes. It is the duty of the stenographer, under section 479, to make transcripts into long hand of the shorthand notes taken in a cause, when requested by a party or his attorney. And the fees of the stenographer for making such transcripts in criminal cases are required, by section 480, to be paid out of the county treasury. When the fees -are paid by the defendant he is entitled to be reimbursed out of the county treasury. A proper way to obtain such reimbursement is to present the claim ' to the county commissioners for allowance, as provided by section 894; and, upon their refusal to allow the claim, to appeal to the court of common pleas, in accordance with section 896, as was done in this case.

Judgment affirmed.

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


author: Shauck, J.

text:
    The State of Ohio v. Gravett.

      Osteopathy, the system of kneading and ruhhing — Is comprehended within practice of medicine — Section 4-iOSf, Rev. Stat. —Qualifications for practice may he required — Legislative enactment discriminating against osteopathists is as to such discrimination void, when — Constitutional law.

    1. “The system of rubbing and kneading the body, commonly known as osteopathy,” is comprehended within the practice of medicine defined by section 4403f, of the Revised Statutes, as amended by the act of April 14, 1900.
    2. One who has an established practice in the healing of diseases may be required to conform to such reasonable standard respecting qualification therefor as the general assembly may prescribe, having in view the public health and welfare.
    3. A legislative enactment which discriminates against osteopath- . ists by requiring them to hold diplomas from a college which requires four years of study, as a condition to their obtaining limited certificates which will not permit them to prescribe drugs or perform surgery, while not requiring such time of study from those contemplating the regular practice as a condition to their obtaining unlimited certificates for the practce of medicine and surgery, is as to such discrimination, void, and compliance therewith cannot be exacted of those who practice osteopathy.
    (Decided December 3, 1901.)
    Exception to the decision of the Court of Common Pleas of Darke county.
    Gravett was indicted at the October term, 1900, of . the common pleas court, the charge being:
    "The jurors of the grand jury of the county of Darke and the state of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their oaths, in the name and by the authority of the state of Ohio, do find and present: That Henry H. Gravett, late of said county, on the 11th day of September in the year of onr Lord, one thousand and nine hundred, at the county of Darke aforesaid, did knowingly, wilfully and unlawfully practice medicine in the state of Ohio and county aforesaid without having first complied with the provisions of the act of the general assembly of the state of Ohio entitled: “An Act to regulate the practice of medicine in the state of Ohio,” passed February 27, 1896, and amended April 14, 1900, in this that at the time and place aforesaid, he, the said Henry H. Gravett, did, for a fee, to-wit, the sum of five ($5.00) dollars prescribe and recommend for the use of one Martha Huddle, a certain application, operation and treatment, to-wit, a system of rubbing and kneading the body, commonly known as osteopathy, for the treatment, cure and relief of a certain bodily infirmity or disease the name and nature whereof is unknown to the jurors aforesaid, he, the said Henry H. Gravett, at the time aforesaid, not having obtained or received from the state board of medical registration and examination of the state of Ohio a certificate entitling him, the said Henry H. Gravett, to practice medicine, or surgery within the state of Ohio, as required by the act aforesaid, he, the said Henry H. Gravett, at the time aforesaid not being entitled, under the act aforesaid, or laws of the state of Ohio, to practice medicine or surgery within the state of Ohio, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.”
    A demurrer to this indictment was sustained to which the present exception is prosecuted.

      J. M. Sheets, Attorney General; J. E. Todd, Assistant Attorney General; A. L. Clark, Prosecuting Attorney; B. El Westfall and Smith W. Bennett, and H. J. Booth, of counsel, for plaintiff.
    In our view, it is proper to trace the course of legislation in Ohio upon this subject, from the days of the free, untrammelled practice of empiricism, when the charlatan and quack, equalled, before the law, the skilled physician and surgeon, to the present day, when the profession is again assuming to be, in fact, as well as in name, a learned profession. In so doing, we have the best of authority; for a proper construction cannot be given to an act unless, we know the history of the development leading up to the act. Story on Constitution, sections 402-405. The earliest law relative to medicine, of which there is any record, was passed by the Maryland assembly in 1638. This was merely to regulate charges of physicians.
    The earliest attempt to regulate the practice of medicine in the American colonies, of which there remains any record, is the law of Massachusetts, passed in 1649.
    This act forbade any one except those “skillful in the art to be employed at any time about the bodies of men, women, or children for preservation of life or health, as chirurgions, midwives, physicians,” etc., etc. This law was substantially adopted in New York in the duke of York’s grant of 1665, and later followed in the other colonies.
    This being the first legislation upon this subject, from that day to this it has never been seriously questioned, but that the power is given to the legislative bodies to regulate the practice of medicine.
    Antecedent to the legislation here in question, we had the following enactments in Ohio.
    The first statute law regulating the practice of medicine was passed January 14, 1811, 9 O. L.,19, 23. The act was entitled: “An act regulating the practice of physio and surgery”

    The second act upon the subject was passed February 8, 1812, 10 O. L., 58,65, and repealed the act oí January. 14, 1811.
    The act of February 8,1812, was repealed by an act of January 14,1813,11 O. L., 28, 33.
    The act of January 14, 1813, was repealed by “An act regulating the practice of physio and surgery ” passed January 28, 1817, 15 O. L., 195, 201.
    The act passed January 28, 1817, was amended by the act of January 30,1818,16 O. L., 105,106.
    The act of January 28, 1817, as amended January 30, 1818, was repealed by an act passed January 15, 1821, 19 O. L., 28, 35.
    The act of February 15, 1821, was repealed by the act of February 26,1824, 3 Chase’s Stat. 1966.
    This act was continued with minor amendments until February 25, 1833, 3 Chase’s Stat. 1942, and was then repealed. After its repeal, no law was enacted until May 5, 1868.
    This act was entitled “An act to protect the citizens of Ohio from empiricism and elevate the standing of the medical profession.” 65 O. L., 146. It took effect October 1, 1868.
    Under the work of the commission, the first section of this act was carried into the Revised Statutes of 1880, as section 4403, but, “two full courses of instruction” were defined by the additional words “of at least twelve weeks each.” That portion of the second section which took away from the person violating the act, the right to recover compensation for services rendered, was incorporated in section 4403.
    The balance of section one of the act of May 5,1868, prescribing the penalty by way of fine and imprisonment, was carried into the Revised Statutes of 1880. as section 6992, being preceded by the qualification in section 1 of the act of May 5, 1868, omitting, however, evidently through inadvertence, the provisions for continuous practice for ten years.
    The second section of May 5, 1868, which had been inserted in the Revised Statutes under section number 6992, was amended by the act of April 18, 1881, 78 O. L., 183, so as to insert the proviso as to continuous practice for ten years.
    Section 4403 of the Revised Statutes of 1880, defined the qualifications as to graduation thus :
    “No person who has not attended two full courses of instruction, of at least twelve weeks each, and grad' uated at a school of medicine either in the United States or a foreign country,” etc.
    By the act of May 2, 1885, 82 O. L., 218, the words quoted were stricken out and the following inserted:
    “No person who is not a graduate of a reputable school of medicine, either in the United States or a foreign country,” etc.
    At the same .time a retaliatory provision was inserted. As thus amended section 4403 remained in force until February 27, 1896.
    The act of February 27, 1896, 92 O. L., 44-48, repealed original sections 4403 and 6992 of the Revised Statutes. It provided for a state board of medical registration and examination of seven members. It established requirements for practice of medicine, surgery and midwifery, and required each applicant for a certificate to apply to such board. It compelled each practitioner to apply and exempted no one.
    It provided when the board might refuse to grant a certificate, and when it might revoke the same. Provided for a record with the probate judge of the county in which the applicant resides. A person practicing midwifery at the passage of this act, was to apply to the probate judge for a certificate, making affidavit to the time and place he had practiced, and as to qualification. The probate judge was to issue a certificate, upon payment of fee. All persons desiring to practice midwifery after the passage of the act were required to pass examination such'-as the board might require. But such certificate, so granted, gave the person no right to operate, etc.
    The act defined the practice of medicine and surgery, provided penalties for all violations, and how the act should be enforced.
    The act of April 14,1900, 94 O. L., 198-201, repealed Secs. 4403-c and 4403-f of the act of February 27, 1896. The amendments to Sec. 4403-c consisted in prescribing certain essentials of applicants for examination before admitting them to the examination, viz., either a diploma from a reputable college, normal school, high school or seminary, issued after four years of study; a teacher’s permanent or life certificate; a medical student’s certificate; a certificate of examination for admission to the freshman class of a reputable literary or scientific college; a certificate of having passed an examination directed by the state medical board; and certain other requirements.
    The act also named the studies in which the applicant was to be examined. It named certain persons, or classes to whom the act is not to apply; but as this is the act which is assailed in this action as unconstitutional, we will quote from it more at length in other portions of this brief.
    We thus see in the foregoing legislation a gradual evolution from the period when no qualification was demanded of the practitioner, to the present, when qualifications are prescribed and examination demanded of each person entering the profession. The effect of the legislation so far as requiring certain qualifications, might be summarized as follows;
    First. The legislation in force from January 14, 1811, to February 25, 1833, left the entire subject of the practice of physic and surgery to medical societies, incorporated under special acts; the requisites varying from three full years’ study and an examination in anatomy, surgery, materia medica, chemistry and theory and practice of medicine to that prescribed by the medical convention of Ohio, upon whom no qualification was placed, save that the period of study should not be less than two years nor more than four years.
    Second. From February 25, 1833, to October 1, 3868, no legislation was in force.
    Third. From October 1, 1868, to February 27, 1896, a certificate of qualification from a state or county medical society entitled the holder to practice medicine and surgery in Ohio.
    Fourth-. From October 1,1868, to January 1,1880, graduation at some school of medicine, either of the United States or some foreign country, after attending two full courses of instruction, entitled the graduate to practice in Ohio.
    Fifth. From January 1, 1880, to May 2, 1885, graduation at a school of medicine, either in the United States or a foreign country, after attending two full courses of instruction, of at least twelve weeks each, entitled the graduate to practice in Ohio.
    Sixth. From May 2, 1885, to February 27, 1896,. graduation at a reputable school of medicine, either in the United States or a foreign country, entitled the graduate to practice in Ohio; but this was subject to the retaliatory proviso that foreign graduates should be subject to the same restrictions in Ohio that were imposed by their state or country upon Ohio graduates desiring to practice there.
    Seventh. During the entire period, from October 1,1868, to February 27,1896, the continuous practice of medicine for a period of ten years qualified a person to practice in Ohio.
    In answering the claim of the unconstitutionality of this act, we need only examine it in the particulars wherein it differs from the act of February 27, 1896, 92 O. L., 44, 49. That act was subjected to the same criticisms as the one under consideration, in the case of France v. State, 57 Ohio St., 1, and the same was sustained as a valid exercise of legislative power by the entire coqrt.
    The question is narrowed here to the proposition, that, as the old act (92 O. L., 44) was constitutional, the addition of the new matter in the new act, (94 O. L., 198) has not violated any provision of the constitution.
    If the new matter in the last act, contrary to our view of the case, should be held to render the act unconstitutional, it would not make the act wholly void. Exchange Bank v. Hines, 3 Ohio St., 1; Treasurer v. Bank, 47 Ohio St., 503.
    We have cited the various acts heretofore regulating the practice of medicine, not only to show the gradual development toward a higher professional and educational standard, but also to show thereby, that the phrase “the practice of medicine,” is broad enough to include the practice of osteopathy.
    The contention is repeatedly made by the defendant, that the practice of medicine does not include osteopathy; that the exponents of that pathy do not use drugs or medecine, and hence cannot be charged with the practice of medicine. Their entire contention seems to be a jugglery with the word medicine; therefore, an examination into its use may be considered in point.
    In each of the seven acts, covering the period between January 14, 1811, to‘May 5, 1868, the purpose was preserved as expressed in the first act, viz., that of “regulating the practice of physic*and surgery.”

    The European practitioners preserved the distinction between physicians, surgeons and midwives, making three separate professions, the one not including the other. This was partially observed in America during the early years of the colonies, especially in the larger towns and among medical practitioners of foreign education. But the exigencies of the new surroundings soon put an end to the distinction between physicians and surgeons, and the same persons began, and have ever since engaged in the indiscriminate practice of both professions. Baas History of Medicine, 585.
    The practice of midwifery remained in the hands of women during the first half of the eighteenth century, whose qualifications consisted of a more or less extensive personal experience. Physicians were only called in difficult cases. The earliest regular obstetrician of the colonies was Dr. John Moultrie of Charleston, who came to this, country in 1733 and died in 1773. Baas History of Medicine, 808.
    The profession of medicine recognizing surgery and midwifery as a department of medicine, is osteopathy referable to any of these topical divisions?

      Little v. Nebraska, decided by the Supreme Court of Nebraska, November 21, 1900, 84 N. W. Rep., 248.

      Osteopathy is, as yet, unknown to the world as a definite branch of science. State v. Liffring, 61 Ohio St., 39.
    We contend, that the use for which osteopathy is employed, is in the treatment of disease, and if it is embraced within any of the four words used in section 4403 of the Revised Statutes, “appliance, application, operation or treatment,” then any person prescribing, using or recommending it for “the cure or relief of any wound, fracture or bodily injury, infirmity or disease,” is certainly engaged in the practice of medicine as defined by the act.
    This court did not deny to the law making power the right to define what should constitute the practice of medicine, but held that the use of the words, “or other agency” after the words “drug or medicine,”, limited the “agency” to such as are of the general character of a drug or medicine, and to be applied or administered as are drugs or medicines, upon the principle of noscitur a sociis. The legislature having that decision before it, passed the act in question, and sought to enlarge, or more accurately define, what should constitute the practice of medicine; hence, the employment of the words, not found in the earlier act, of “appliance, application, operation or treatment.”
    Do those words comprehend rubbing or kneading the body? Is “rubbing and kneading the body for the treatment, cure or relief of a certain bodily infirmity or disease, either an “application, operation or treatment?” In our minds they are certainly included.
    But the question, we think has been settled in the case of Eastman v. The People, 71 Ill. App., 236.
    What is called a discrimination against osteopaths, by defendant’s counsel, is, in fact, no discrimination at all. Exception is made in the act, that it shall not apply to any osteopath who holds a diploma from a legally chartered and regularly conducted school oí osteopathy in good standing as such, wherein the course of instruction requires at least (4) four terms of (5) five months each in (4) four separate years.
    • Defendant says that this provision is not a regulation, but amounts to a prohibition, because no such college, with such a course, exists anywhere. If this be true, it becomes a question whether the law must be framed to fit the schools, or the schools to comply with the law. The statute only requires osteopaths to be examined in the four subjects, anatomy, physiology, chemistry and physical diagnosis. If the above objection should be considered seriously, why could it not be urged, if such be the fact, that, because the schools of osteopathy do not require their, graduates tb study anatomy, therefore the curriculum being different from that provided by the act, the requirement amounts to a prohibition. The requirement of four terms of five months each in four separate years, is not a discrimination in fact against defendant, but is in his favor, because the regulation adopted by the state board of medical registration and examination, in fixing a standard for other medical colleges, says:
    “It shall require attendance upon 80 per cent, of each of four graded courses of instructions of not less than twenty-six weeks each, excluding holidays, in four separate years.”

    In compliance, with the requirements of the board, all schools have arranged their terms and curriculum accordingly; and why any special exception should be made in the case of osteopaths, cannot be comprehended.

      It is also urged as an argument against the law, that, as the curriculum requires less of an osteopath than of other practitioners, it renders the law unconstitutional, being class legislation and in violation oí the fourteenth amendment to the United States constitution. The applicant, who is an osteopath, must be examined in four studies; other applicants, in at least nine. Sections 4403-c and 4403-f. This is justified when it is observed that an osteopath does not administer drugs nor perform major or operative surgery. The studies are only such as the practice of osteopathy requires the practitioner to be familiar with. Boards of education are authorized to establish curricula for various schools, and to require of the teachers thorough qualifications in the branches they teach. They need not be familiar with Calculus in order to teach the A. B. C. Likewise, the osteopath, in order to minister to disease by rubbing and kneading the human body, need not be familiar with surgery, materia medica, etc. The distinction is founded in the best of reasons. It is but carrying out the distinction made by that school of medicine itself.

      Addison F. Broomhall and Anderson & Boimnan, for defendant.
    Coming now to the indictment in this case, we find that the defendant is not charged with practicing osteopathy; but is indicted for knowingly, wilfully and unlawfully practicing medicine by prescribing and recommending for a fee the use of a certain application, operation and treatment, to-wit: “A system of rubbing and kneading the body, commonly known as osteopathy, without having obtained or received from the state board of medical registration and examination, a certificate entitling him to practice medicine or surgery within the state of Ohio as required by the act of 1896 and the amendments thereto.”
    The court will note that the statute does not attempt to define osteopathy, but the indictment does, calling it a system of rubbing and kneading the body; and the inference immediately follows that rubbing and kneading the body is the practice of medicine and that the defendant is indicted for that offense. The indictment would be complete if the word “osteopathy” did not appear, because a rubbing and kneading of the body would be the use of an application, operation or treatment for the cure of a bodily infirmity or disease.
    This brings us to the first question raised by the record, namely: Is the rubbing and kneading of the body; for a fee, the practice of medicine within the meaning of the medical law of Ohio?
    The authority of the legislature to regulate learned professions can not be doubted. It is an exercise of the police power and therefore a legislative act; but when the general assembly not only attempts to regulate the practice of a science, but assumes to say what that science is, enumerates specific acts, and declares them to be the practice of that science, it exceeds its authority and enters the domain of the courts. It is an attempt to fix a conclusive rule of evidence which has been repeatedly held as beyond the power of the general assembly. The effect of such legislation would be to deprive persons, charged with offense, of a judicial investigation and judgment as to their guilt. In this case it would be only necessary for the state to prove that the defendant had rubbed and kneaded the body of a human being for a fee, in order to convict him of a violation of law. The jury would not be left the discretion to say whether or not he had in fact been practicing medicine; and the introduction of evidence by Mm tending to show what the practice of medicine is, and that the rubbing and kneading of the body was not within the sphere of that science, would be of no avail.
    The use of certain words and titles in connection with the name of a person are made prima facie evidence of the practice of medicine by the person using them, but the treatment of disease, for a fee, by any method whatever is made conclusive proof of the practice of medicine. This is the determination of a judicial question by the legislative branch, and therefore unconstitutional and void.
    Counsel for the state cite the case of Eastman v. People, 71, Ills., 111, App., 236, and Little v. State of Nebraska, as conclusive of this question. We have not seen the Illinois statute; the Nebraska statute, however, is similar to ours, but an examination of the cases referred to will show that the point here contended for was not in the minds of the courts when those cases were decided. Both courts held the “Practice of Medicine” synonymous with “Healing Art;” and having made that assumption, there was but one conclusion open to them. The real contention is upon the right of the courts to make such an assumption, or of the legislature to make it for them. It is said by Shauck, C. J., in Ohio v. Liffring: “Such legislation would be an astonishing denial of the commonly accepted views touching the right to personal opinion and conduct, which does not invade the rights , of others.” The decisions of Nebraska and Illinois courts are not sufficient authority to sustain the legislature of Ohio in its attempt to declare “Black,” “White,” and that no citizen shall be permitted to prove that it is not infallible. 2 Tiedeman’s State and Federal Control of Persons and Property, p. 871; Cooley Const. Limitations, p. 452; Railway Co. v. Payne, 34 Am. Rep., 55; State v. Beach, 147 Indiana, 74; Linz v. Charlton, 23 Wis., 474.
    This statute is a bold usurpation of judicial power. A law is as clearly unconstitutional when it is beyond and without legislative authority, as when it falls within some of the express limitations enumerated in the constitution. Railway Co. v. Commissioners, 1 Ohio St., 77.
    A discrimination has been made in section 4403f in favor of the osteopaths, namely: That they may practice medicine by passing an examination in four subjects only, which entitles them to treat disease on different terms and conditions from any other persons in the state.
    This may have been intended by the framers of the statute, and possibly by the legislature, as a favor to the osteopaths; but whatever the intention may have been, it renders the law unconstitutional; because it denies to others what it grants to osteopaths; it is therefore class legislation and in violation of the constitution of the state and of the fourteenth amendment to the constitution of the United States. The regular physician, the trained nurse, the attendant in the bath house, are not equal with the osteopaths before the law; they, too, rub and knead the body for a fee, but if they do so without a medical diploma, they are violaters of the law and liable to prosecution. State v. Gardner, 58 Ohio St., 599.
    But all the discriminations are not in favor of the osteopaths. Section 4403f confers a special privilege on certain medical students, and the same section makes a discrimination in favor of foreign medical practitioners coming into the state, but these privileges are not allowed foreign osteopaths, nor osteopathic students.
    It is apparent that the law was originally designed to regulate the practice of medicine only; but after it was framed and launched in the legislature, an attempt was made to include a treatment which, even the practitioners and professors of medicine did not regard as a branch of medicine; and which they still speak of with disrespect. How can osteopathy be fairly considered a branch of medicine while the disciples of medicine are calling it a fad of a fraud.
    How can a law stand which provides that osteopaths may practice medicine, on more favorable terms than medical doctors; at the same time providing that they shall not practice medicine on the equal terms with medical practitioners. Barbier v. Connolly, 113 U. S., 27; Soon Hing v. Crowley, 113 U. S., 703, 709; Railway v. Beckwith, 129 U. S., 26.
    At the time of the passage of this act, there was a number of osteopaths practicing in Ohio. The defendant was one of them; he had built up a large and lucrative practice. His right to practice osteopathy, his interest in a practice already established, are recognized by the laws of Ohio as property. An established practice is a thing which can be bought and sold. Will it seriously be contended that the legislature can thus arbitrarily deprive a citizen of his livelihood, and of his property in his professional practice? The fourteenth amendment to the constitution of the United States provides: “That no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
    The bill of rights of our own state, article 1, section 1, provides: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety.”
    If osteopaths are practicing medicine, they are physicians representing a recognized school of practice, and under section 4403 of the Revised Statutes, they are entitled to representation upon the board of med ical examiners.
    Osteopaths were ignored in the organization of the present medical board. This fact does not appear upon the face of the indictment, but the court may take judicial notice of the formation of the public bodies of the state, and may say whether or not the Ohio medical board of examiners is organized according to law. If the court should go so far as to decide that the rubbing and kneading of the body, for a fee, is the practice of medicine, before the osteopaths can be required to appear for examination, there must be a board of examiners upon which all schools of practice have their representatives.
    Allopaths have never been permitted to examine homeopaths; and no allopath would submit to an examination by homeopathists, but both of these traditional enemies desire the privilege of examining osteopaths, and assert their right, under the Ohio medical law, to do so.
    If medical practitioners can be examined only by medical men, osteopaths have the right to be examined only by osteopaths. If they are practicing medicine, they are entitled to representation on the Ohio medical board. If they are denied these privileges, they no longer enjoy equal protection of the laws.
    If the board is illegally organized, it has no authority to examine anybody. If the law discriminates against the osteopaths, it is unconstitutional and void. 1 Tiedeman’s State and Federal Control of Person and Property, page 249.
   Shauck, J.

It is said that the decision of the court below is justified by The State of Ohio v. Liffring, 61 Ohio St., 39, the act charged in the indictment not being an offense within the terms of the statute. The practice which was there charged as unlawful is the same as that charged in the present indictment. By the statute then in force one was regarded as practicing medicine who should “for a fee prescribe, direct, or recommend for the use of any person, any drug or medicine, or other agency for the treatment, cure, or relief of any wound, fracture, or bodily injury, infirmity, or disease.” The view then urged by the attorney-general was that the system of rubbing or kneading the body, known as osteopathy, is an “agency” within the meaning of the statute; but the interpretation of the statute seemed to invoke the maxim noseitur a sociis as an aid in determining the meaning of the word, and our conclusion was that it meant something of like character with a drug or medicine to be administered with a view to producing effects by virtue of its own potency; and that it, therefore, did not include osteopathy.

But since our decision in that case, by the act of April 14, 1900, the section (4403Í) has been amended and a more comprehensive definition given of the practice regulated, so that one is now regarded as practicing medicine within the meaning of the act “who shall prescribe, or who shall recommend for a fee for like use, any drug or medicine, appliance, application, operation or treatment, of whatever nature, for the cure or relief of any wound, fracture, or bodily injury, infirmity or disease.” The amended act further contains a proviso to prevent its application “to any osteopath who holds a diploma from a legally chartered and regularly conducted school of osteopathy, in good standing as such, wherein the course of instruction requires at least four terms of five months each in four separate years, providing that such osteopath shall pass an examination satisfactory to the state board of medical registration and examination on the following subjects: anatomy, physiology, chemistry, and physical diagnosis. Provided that such osteopath shall not be granted the privilege of administering drugs nor of performing major or operative surgery.”

It seems quite clear that in its present form the statute affords no proper occasion for the application of the maxim of interpretation by which we were aided in State v. Liffring, supra. Careful comparison of the two acts with respect to their definitions of the practice regulated shows that while in the former the legislature intended to prohibit the administration of drugs by persons not informed as to their effect or potency, by the latter it has attempted a comprehensive regulation of the practice of the healing art; so far, at least, as to require the preparatory education of those who, for compensation, practice it according to any of its theories. The comprehensive language of the statute and the purpose which it clearly indicates require the conclusion that osteopathy is within the practice now regulated.

In support of the decision of the court of common pleas it is further contended that if the act includes the practice of osteopathy it is to that extent void on constitutional grounds. From this point of view it is urged that the defendant has an established practice as an osteopathist, and that the statute is void because it contains no provision saving his vested right therein. This objection is founded on the inhibition of the fourteenth amendment to the constitution of the United States: “Nor shall any state deprive any person of life, liberty, or property without due process of law;, nor deny to any person within its jurisdiction the equal protection of the laws;” and the provision of our own bill of rights which gives inviolability to the rights of “enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking to obtain happiness and safety.” In urging this objection it is correctly assumed that there is a property interest in a vocation or means of livelihood, but the distinction between the right to establish a practice, and the right to pursue a practice already established seems to be inadmissible. By what process of reasoning could it be maintained that the right to enjoy property should be esteemed more sacred than the right to make contracts by which property might be acquired? The provision quoted from the bill of rights includes the right to acquire, and the right to possess within the same protection. Our constitutions are founded upon individualism and they make prominent the theory that to the individual should be granted all the rights consistent with public safety; and our development is chiefly attributable to the firm establishment and maintenance of those rights by an authorized resort to the courts for their protection against all hostile legislation which is not required by considerations of the public health or .safety. In the absence of such considerations those rights are alike immutable; in' their presence they must alike yield. In this connection counsel for the defendant call our attention to The State of Ohio v. Gardner, 58 Ohio St., 599, a case which should not be referred to without approval. But it is there held that “where the pursuit concerns in a direct manner the public health and welfare, and is of such a character as to require a special course of study or training, or experience, to qualify one to pursue such occupation with safety to the public interests, it is within the competency of the genéral assembly to enact reasonable regulations to protect the public against evils which may result from incapacity and ignorance.”

In the enactment of legislation of this character the general assembly may take account of the advance of learning, and provide for the public health and safety by such reasonable and proper measures as increased knowledge may suggest; and, to make such legislation effective, one having an established practice, and one contemplating practicing, may be required to conform to the same standard of qualification. This conclusion seems to be justified by the considerations involved, as it is by the authority, of The State v. Gardner, supra, and Dent v. West Virginia, 129 U. S., 114.

It is further urged against the validity of the statute in its application to osteopathists that to their admission to practice it prescribes conditions with which compliance is impossible, and that it is therefore an attempt, by indirect means, to prohibit practice according to their theories. In this connection our attention is called to the provision of section 4403c, which, as to those contemplating practicing in other schools, requires that the applicant for a certificate “shall be examined in materia medica and therapeutics, and the principles and practice of medicine of the school of medicine in which he desires to practice by a member or members of the board representing such school;” and to the fact that there is no member of the board representing the school of osteopathy. It could not be maintained, and we do not understand counsel to contend, that the board of medical examination must be so numerous a body that it may have a member of every existing or possible school. The insistence is that however few or numerous the members of the board may be, the act must contain practicable provisions for ascertaining the attainments of all who apply for certificates, they being in other respects qualified. Such provisions it is insisted are not contained either in that section or in the proviso of section 4403f, which relates especially to osteopathists, for it is there provided that an applicant shall hold “a diploma from a legally chartered and regularly conducted school of osteopathy in good standing as such, wherein the course of instruction requires at least four terms of five months each in four separate years,” and it is said that there is no school of osteopathy whose requirements exceed two years.

The question before us arises on demurrer to the indictment, and the record does not inform us of the fact that there is no school of osteopathy whose diploma would admit its holder to an examination. However well known it may be to those who have sought information concerning it, we are perhaps without such information as would justify us in regarding it as a fact to be considered in the case.

But a sufficient foundation for this criticism of the act appears in its provisions discriminating against those who propose to practice in the school to which the defendant belongs. The proviso quoted contains a list of subjects upon which those desiring to practice are to be examined. Having in view the theories of the osteopathists as they are commonly understood, it seems clear that no adverse criticism could be made upon the discretion exercised in the requirement of these subjects for examination. They are much less numerous and extensive than those prescribed for applicants who contemplate a regular practice, and an appropriate limitation is placed upon the effect of certificates following such limited examination. But one who desires to practice in the regular school is admitted to a more extensive examination without any requirements as to duration of study in the college whose diploma he holds, and without any requirement in that regard, except that it shall be a “legally chartered medical institution in the United States in good standing at the time of issuing such diploma, as defined by the board.” Why the exaction of four years of study should be made of those only who are to take a shorter examination, and receive a certificate of limited effect, we need not inquire. It is quite obvious that this additional requirement could not have been made of those contemplating the practice of osteopathy because of the number and character of the subjects upon which they are to be examined, nor of the effect of their certificates, nor because of any consideration affecting the public health or safety which does not involve a scientific conclusion adverse to the efficacy of osteopathy. A conclusion of that character cannot be drawn by a body to which legislative power alone is given, and for whose members there is no prescribed qualification of education, knowledge or intelligence. Authority to discriminate against osteopathy would imply authority to discriminate against any other school of medicine. It seems clear from the reasons involved, and from the discussion of the subject, and the points decided in The State v. Gardner, supra, that this discrimination against those who occupy the position of the defendant is unwarrantable, and that compliance with it can not be required.

The question lastly considered would dispose of the exception, but the other questions are in the record, and they have been ably discussed by counsel. It seemed proper to pass upon them to the end that the general assembly may not meet any unnecessary difficulty in the exercise of its ample power to protect the public health and welfare by providing that only the learned may pursue a learned profession whose activities so closely affect them.

Exception overruled.

Minshall, C. J., Williams, Bürkbt, Spbab, and Davis, JJ., concur.


author: Da.vis, J.

text:
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Wells.

      Plaintiff in pending action for penalties, allowed by statute — Has no vested right before recovery of judgment, when — Effect of repeal of penalty statute during action — Interpretation of Sec. 3374, Rev. Stat., as to fractions of a mile — Validity of Sec. 3376, Rev. Stat. — Constitutional law.

    1. A plaintiff in a pending action for penalties allowed by a statute has no such vested right in such penalties before the recovery of a judgment in such action as will render unconstitutional as to him the repeal and amendment of the statute, when it is provided in the amended statute that it shall apply to all actions pending. Revised Statutes, Sec. 3376, as amended April 14, 1900, is constitutional.
    2. The unit of measurement provided in Sec. 3374, of the Revised Statutes is one mile, and fractions of a mile are not to be considered. The words “more than eight miles” in said section are, therefore, equivalent to nine miles, proceeding by units of one mile; that is, the limit of three cents per mile applies first to nine miles, then to ten, then to eleven, and so on; and for any distance less than nine miles the said limit does not apply.
    (Decided December 3, 1901.)
    Error to the Circuit Court of Seneca county.
    Tbe facts are sufficiently stated in the opinion.

      Macauley Weller and John T. Dye, for plaintiff in error.

      Willis Bacon, for defendant in error.
   Da.vis, J.

This action was commenced in the court of common pleas on the 14th day of April, 1898, by Winfield S. Wells against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, on five distinct causes of action for alleged overcharges of fare for the transportation of the said Wells, three of which overcharges were between Tiffin and Carey, a distance alleged to be 15.60 miles, and two of the overcharges being for fare between Tiffin and Berwick, a distance of .8.62 miles, and praying for judgment upon each cause of action in the sum of $150. These penalties were claimed to have been incurred under the provisions of sections 3374 and 3376 of the Revised Statutes. While the case was pending in the court of common pleas, that is, on the 14th day of April, 1900, section 3376 was amended and the original section, 3376, repealed. So far as affects this case, the only change in the statute was in the omission of a clause authorizing exemplary damages and the substitution therefor of the following: “Provided that a separate cause of action shall be brought for each overcharge unless the party aggrieved give notice in writing at the time of such overcharge, except the first one, to the officer, agent or employe of such railway making or receiving such overcharge, of his intention to bring such action, and no judgment shall be rendered in any action for the penalties herein provided for more than one overcharge unless such written notice shall have been given by the party aggrieved.”

“Section 2. Section 3376 as amended by this act shall apply to all actions now pending excepting the provisions requiring notice of intention to commence such action to be given as therein required.”

The railroad company filed an answer, a portion of which was demurred to by the plaintiff, which demurrer was overruled and the plaintiff replied. The case was tried in the common pleas court without a jury, some evidence being offered by the railroad company relating to matters alleged in the first and second grounds of defense which are not material to the present inquiry, and upon an agreed statement of facts relating to most of the testimony in issue in the case, and the common pleas gave judgment for one penalty, $150. The defendant prosecuted error in the circuit court and the plaintiff filed a cross-petition in error, alleging that the common pleas had erred in giving him a judgment for only $150, one penalty, when it should have been given for $750 that is, one penalty on each of the causes of action alleged.

The circuit court reversed the judgment of the common pleas and rendered judgment against the railroad company for the five penalties claimed in the petition, $750, holding that the act of April 14, 1900, was unconstitutional.

If the proviso in this amended section 3376 is valid, it is very palpable that the judgment of the circuit court is erroneous; because the statute declares that no judgment shall be rendered in any action for the penalties therein provided, for more than one overcharge, unless the written notice prescribed shall have been given. A judgment for one overcharge could not, under the statute, be less than one hundred and fifty dollars, and in this case could not be more; because double the overcharge complained of, and indeed of all the overcharges, would not be as much as one hundred and fifty dollars. The circuit court, therefore, overreached its jurisdiction when it rendered judgment against plaintiff in error for $750, unless the proviso in the amended section 3376 is unconstitutional and the former statute is still in force. It is not the duty of the courts, and they will not make haste, to declare a statute void upon a mere suggestion of conflict with the constitution. On the contrary it is a principle firmly imbedded in our jurisprudence that it must be a clear infraction of the constitution which will authorize the courts to intervene and overthrow an act of the legislature. The contention here is that the proviso now under consideration, being expressly made applicable to all pending actions except as to notice of intention to commence an action, is retroactive, and that it impairs a vested right of the plaintiff in the accrued causes of action contained in his petition. If this claim is valid the plaintiff would not only be entitled to recover, for each overcharge under the statute as it stood before amendment, a sum equal to double the amount of the overcharge and not less than one hundred and fifty dollars, but also such further sum as exemplary damages as a jury may award, not in any one case in excess of two thousand dollars. It is very clear that the amount so to be recovered is allowed as penalty and not as compensation. Indeed, the statute characterizes it as penalty. But the repeal of a statute which imposes a penalty will prevent any prosecution, trial or judgment for penalties accruing while it was in force, unless the contrary is provided in the repealing statute or some other existing statute. Sutherland cn Stat. Const., section 166; 23 Am. & Eng. Enc. Law (1 ed.), 507, 510. The right of recovery in such ('ases being founded exclusively on the statute, cannot be enforced when the law which gave the right and authorized its enforcement, no longer exists. It is very true that when a statute prohibits an act and subjects the offender to a penalty, and when also the violation of the statute is such that the injured party may recover damages on common law principles, the repeal of the statute will not take away the right to recover damages, and there are many cases to support that doctrine. But it has been broadly asserted that “There is no such thing as a vested interest in an unenforceable penalty.” Gregory v. German Bank of Denver, 3 Colo., 332, citing Sedgwick on Stat. Law., 111; Norris v. Crocker, 54 U. S. (13 How.), 429; Gaul v. Brown, 53 Me., 496; Curtis v. Leavitt, 15 N. Y., 9, 152; Nichols v. Squire, 5 Pick. 168; Railroad Co. v. Austin, 21 Mich., 390. In the Michigan case last cited the court hold that a statute which authorizes a judgment .to be entered for double the damages found by the jury is in the nature of a penal statute, the repeal of which before judgment, though after verdict, will defeat the right to such recovery — no personal equity to such right underlying the law or arising upon it, appearing, and say: “When a party, as in this case, avers that a statute has invested him with a right against another in the nature of a personal charge, which a repeal of the statute before judgment cannot impair, he takes it upon himself to show that the right was vitalized by some personal equity underlying the law, or arising upon it. The claim of the defendant in error appears to have no such element to support it. It rests upon the single fact that the legislature, by the passage subsequently repealed, authorized judgment in double the whole damages.” Railroad Co. v. Austin, 21 Mich., 413. The same doctrine is approved in State ex rel. v. Youmans, 5 Ind., 280, in which it is said: “In a penalty there can be no vested right until it has been reduced to judgment. A mere penalty never vests, but remains executory. If it does not become executed before a repeal of the statute creating the right of action, the penalty falls with the law, and cannot be enforced. Smith’s Comm. 896.” To the same effect are Rood v. Railway Co., 43 Wis., 146; Graham et al. v. Railway Co., 53 Wis., 473, 483, 484, and Commonwealth v. Welch, 2 Dana (Ky.), 330.

The authorities above cited, and there are many more of the same kind, sufficiently indicate the reasons which constrain us to hold that the plaintiff in this case had no vested rights which were impaired by the repeal and amendment of the statute under which his right of action is claimed to have accrued. The right to recover the amount of overcharge existed without the statute, but the right to recover double the amount of overcharge, the right to recover not less than one hundred and fifty dollars, although double the amount of overcharge might not be one dollar, and the right to recover exemplary damages, are severely penal privileges arising altogether upon the statute. They have no foundation whatever in nátural, contractual or equitable considerations, so that when the statute was repealed the plaintiff’s statutory rights, to the extent that the statute was amended or modified, were modified with it. We hold, therefore, that the amended statute is constr tutional, and that, inasmuch as it is not claimed that such written notice as provided for was given, there can be no recovery in this action for more than one overcharge, that is, for one hundred and fifty dollars.

But does the plaintiff’s petition. disclose a cause of action? Statutes which impose penalties or forfeitures or provide for a recovery of damages beyond just compensation to the party injured, whether such penalties, forfeitures or damages are to be recovered at the suit of the state or of a private individual, are to be strictly construed in so far as they inflict punishment. 23 Am. & Eng. Enc. Law (1 ed.), 378, 379, and cases there cited. In order .to determine whether the defendant railway company has demanded or received for the transportation of a passenger a greater sum than is allowed by law, Revised Statutes, section 3374 must be construed, and in so far as it tends to inflict punishment it must be, as observed, strictly construed. The rate which a railway company may demand and receive for the transportation of passengers, as provided in this section, is “not exceeding three cents per mile for a distance of more than eight miles.” The standard or limit of measurement here is the mile, not the half mile or any other fraction of a mile. The charge for transportation must be “per mile;” and a construction which would subdivide the mile into halves, or tenths or hundredths, or even thousandths, or infinitely less fractions would be unreasonable and impracticable and would subject the company to endless annoyance and numberless prosecutions; for if by reason of the word “more” we may take account of half a mile there is no reason why we may not be compelled to measure to the exact one hundred thousandth of a mile. We are not at liberty to suppose that the legislature intended to impose these severe penalties upon the possibiliiies of such a construction, and we can only believe that the legislature meant just what its language implies, that the standard of measurement is one mile and no less. This being so the phrase “more than eight miles” is equivalent to nine miles, and the three cent limit does not apply until the ninth mile is reached, because we do not assume that the legislature meant to take account of the fractions of a mile. By the construction of section 3374 which we adopt, there would be no overcharge for the distance between Tiffin and Berwick, 8.62 miles, for as to that distance there is no limitation on the charge for transportation; but as to the distance between Tiffin and Carey, 15J0 miles, there are three overcharges pleaded. As to them there can be only one recovery of one hundred and fifty dollars, for the language of amended section 3376 is: “No judgment shall be rendered in any action (not cause of action) for the penalties herein provided, for more than one overcharge,” etc.

Another consideration may be inserted here. The provision of the amended section, that suit upon two or more overcharges shall not be joined in the same action without a written notice by the plaintiff of his intention to bring such action, does not have the effect to authorize a judgment in any action for more than one hundred and fifty dollars, although the overcharges may have occurred before the amendment, when such action was not required.

The judgment of the circuit court is reversed and that of the common pleas

Affirmed.

Burket, Spear and Shauck, JJ., concur.

Minshall, C. J., and Williams, J., dissent.