author: Price, J. Spear, J.,

text:
    Pegg et al. v. The City of Columbus et al.

      City vehicle license ordinance — Invalid as to owners of vehicles of non-residents, when.

    An ordinance adopted by the council of the city of Columbus on me 20th day of March, 1905, “to license and regulate the use of the streets of the city of Columbus * * * by persons who use vehicles thereon,” and which provides, “that no vehicle shall be used upon the streets of the city of Columbus, Ohio, unless a license to use such -vehicle upon said streets has been obtained in accordance with the provisions of this ordinance by the owner, user or person having control of said vehicles” — is unreasonable as to owners, users or controllers of such vehicles who are non-residents of said city, and who bring the same onto its streets for purposes of pleasure, or on their own private business but not for hire, and the ordinance as to such persons is invalid and cannot be enforced.
    (No. 10786
    Decided June 8, 1909.)
    Error to the Circuit Court of Franklin county.
    On the 20th day of October, 1906, the plaintiffs in error, fifteen in number, commenced a civil action in the court of common pleas of Franklin county, against the city of Columbus, its mayor, city auditor and city treasurer, to enjoin the enforcement, as against the plaintiffs, of a certain ordinance passed by the council of said city on March 20, 1905, entitled : “An ordinance to license and regulate the use of the streets of the city of Columbus, State of Ohio, by persons who use vehicles thereon and to repeal certain ordinances therein named.” In their petition they aver that they are “farmers and gardeners owning lands and residing in Franklin county, Ohio, outside the limbs of the city of Columbus, and that they are also citizens and electors of Franklin county, Ohio, and bring this action on their own behalf and on behalf of all others similarly situated.” They further aver that each of them is the owner of real estate and chattel property in said county outside of said city “on which they pay all taxes, and that they have paid road assessments for free turnpikes in said county, and that they pay in labor and cash, annually, all road taxes and assessments provided by law; that each of them owns a two-horse farm wagon drawn by two horses, which are .occasionally driven into said city for the purpose of delivering farm products of their own rais-“ ing, and for the purpose of transporting merchandise to their homes which they have purchased in said city for their family use, and that each of them owns a buggy drawn by one horse, and that it is. necessary for plaintiffs, to use their said vehicles occasionally on said streets, and it is also necessary for them occasionally to use their vehicles on said streets in passing through the city, and tó convey their children' to the public schools and university.” Further, “that it is necessary for them to come to-the city of Columbus semi-annually, for the purpose of paying their taxes, also for rendering jury services if their names be drawn from the jury wheel, or to market the products of their farms and gardens; and that the nearest, best and only convenient market for the sale of the products of their farms, or for them to buy merchandise for their family use, is in the city of Columbus, and that it is necessary for them in paying their taxes, or rendering jury services, or in passing through said city, or in attending said schools * * * or in purchasing and securing supplies for their own sustenance, to-bring their vehicles within the corporate limits of said city of Columbus, and to use their vehicles on said streets.”
    The petition sets out the provisions of said ordinance, Section two (2) of which provides that “no vehicle shall be used upon the streets of said city of Columbus, Ohio, unless a license to use such vehicle upon the streets has been obtained in accordance with the provisions of this ordinance by the owner, user, or person having the control of said vehicle.”
    Section three (3) provides, “that any person who shall use, or being the owner or controller thereof, shall permit to be used, any vehicle upon the streets of the said city of Columbus, Ohio, contrary to the provisions of this ordinance, shall be guilty of an offense, and upon conviction thereof shall be punished in the manner hereinafter provided.”
    Section four (4) provides the steps to be taken to obtain a license to use the streets and the certificate to be issued in pursuance of the payment of the license fee, and further provides that, “each applicant for a license shall, before he is entitled to receive the same, pay to the city treasurer the proper annual license fee, or the proportion thereof, as hereinafter provided.”
    The fifth (5) section fixes the annual license fee as follows:
    1. —On each Barouche, Sulky, Cab, Coupe, Buggy, Runabout, Carriage, Trap, Surrey or Phaeton drawn by one horse ..........................$ 1.50.
    2. —On each one-horse vehicle not before mentioned ......■................ 2.00

      3. —On each Runabout, Cab, Coupe, Coach, Barouche, Buggy, Carriage, Surrey, Trap or Phaeton drawn by two horses 3.50
    4. —On each two-horse vehicle not before mentioned ...................... 6.00
    5. —On each vehicle drawn by three horses. 8.00
    6. —On each vehicle drawn by four horses. . 10.00
    7. —On each vehicle drawn by more than four horses........ 10.00
    8. —On each Automobile, Locomobile, Autocar or similar vehicle; used by one or two persons................... S.00
    9. —On each Automobile, Locomobile, Autocar or similar vehicle, used by three or more persons.................. 7.50
    10. —On each .Automobile, Locomobile, Autocar or similar vehicle, used in hauling goods or freight.............. 7.00
    11. —On each Motor Cycle or Auto Cycle. . . 2.00
    12. —On each push cart.....■............. 1.00
    13. —On each bicycle............ .50
    14. —On each vehicle hauling a street piano or street organ.................. 1.00
    “Sec. 6. That each license issued in accordance with the provisions hereof shall expire on the last day of December following its issuance.”
    Provision follows for procuring license during the remaining of the current year and the amount to be paid therefor. Tags or checks of certain material must be used by the licensee in a certain place or displayed in a certain manner.
    Section twelve (12) provides that, “the money paid into the city treasury from said license fees shall be credited to a fund to be known as the ‘vehicle fund’ and shall be first applied to the expenses of issuing said licenses and furnishing said numbers and tags, and then, if any remain, shall be used only for the actual repair of the streets of the said city of Columbus, Ohio.”
    It is provided in Section 15 that any person using any vehicle upon said streets without a license, or without a check or tag attached thereto, etc., as required by the ordinance, shall be guilty of an offense.
    Section sixteen (16) provides “that any person violating any of the provisions of this Ordinance shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined not less than five dollars ($5.00) and not more than fifty dollars ($50.00) and shall pay the costs of prosecution.”
    The petition protests the validity of said ordinance on several grounds, among which are:
    1. That it was enacted for the purpose of raising revenue, and not for the regulation of the use of the streets, and is therefore a tax for revenue.
    2. It discriminates against farmers and garden-' ers who raise and sell the products of their own farms and gardens, in favor of brewery wagons, coal wagons, heavy drays, transfer wagons and trucks carrying heavy loads and used constantly upon the streets, against the vehicles with light loads used occasionally upon the streets; that it is unjust, unfair, unreasonable and exorbitant, in restraint of trade and is against public policy.
    3. It is unconstitutional and void and is not of uniform operation.
    4. That the defendants construe said ordinance so as to apply to the plaintiffs and threaten to arrest plaintiffs if they use said streets without said license and paying for the same.
    The petition prays that defendants be enjoined from enforcing said ordinance against plaintiffs and against other farmers and gardeners similarly situated who market the products of their own farms and gardens in said city, etc.
    The answer of the city admits the facts set out in the petition — but not the legal conclusions therein —and avers that unless restrained, it will enforce said ordinance or so much as is valid, and that it had taken the official opinion of the city solicitor as to its enforcement against persons living outside said city, and as to whether any of them could be excepted from its operation. The city, so the answer says, being in doubt about the soundness of the opinion rendered by the solicitor, prays this court for a construction of said ordinance as to its validity and scope in relation to such non-residents of the city as the plaintiffs.
    On hearing, the court of common pleas found the ordinance to be constitutional, but that it does not apply to or embrace non-residents of the city, and that the plaintiffs and all farmers and gardeners similarly situated are entitled to the relief prayed for.
    The case was taken on appeal to the circuit court and there tried. Besides the admissions found 'in the pleadings the following facts were agreed upon:
    1. The amount of public funds of the city of Columbus required per annum to furnish the necessary clerical services, the license blanks, tags and numbers to issue the license and to put into operation ordinance 21927 will amount to $3,000 per annum and no' more.

      2. Between August 13 and November- 8, 1906, both dates included, licenses have been procured by-owners of vehicles within the city limits as follows: one-horse buggy, 2649; one-horse wagon, 3167; two-horse buggy, 144; two-horse wagon, 1294; three-horse wagon, 9; four or more horse wagon, 7; automobile one or more persons, 212; automobile three or more persons, 218; automobile for freight or goods, 8; motor or auto cycle, 7; push cart, 108; bicycle, 2935; street piano or organ, 7.
    3. When petition was filed there were in Franklin county about four thousand farmers and gardeners, outside the limits of the city of Columbus, who raise and market the products of their own farms and gardens, and that each owns on an average one two-horse wagon and one buggy, pleasure carriage or spring wagon drawn by one horse.
    There are other farmers and gardeners living in counties adjoining Franklin who haul the products of their farms and gardens to the city of Columbus.
    4. The use of vehicles mentioned in the ordinance tends to wear out said streets, and necessitates the constant care and repair thereof, the actual cost of which cannot be accurately determined, but will not be less than $50,000.
    5. Money is required annually for police regulation, because of the use of said streets by vehicles, to prevent fast and reckless driving, blockades, and protect pedestrians at crossings, cost of same estimated at $30,000 per year. A license is not exacted from the owners of street cars operated in the city.
    Coal wagons and beer wagons drawn by two horses on said streets run on an average over ten hours per day. and draw maximum loads at times exceeding six tons. Two-horse farm and garden wagons that are used on the streets draw maximum loads of about two tons. The circuit court found the foregoing to be the facts, and held as conclusions of law:
    “1. That said ordinance does not contravene the constitution of the state of Ohio or of the United States.

      “2. Its terms and conditions apply to non-residents as well as residents of the city of Columbus, Ohio, according to the facts of each case, viz: to those who, in the sense of a continued or repeated practice ‘use’ the streets with the vehicle described.
    “3. The plaintiffs are not entitled to the relief sought.”
    The petition was dismissed at costs of the plaintiffs.
    The case is here to obtain a reversal of the judgment so rendered.

      Mr. M. E. Thrailkill, for plaintiffs in error.
    The authority, from the state to the city, to pass this ordinance is based upon Section 1536-100, Subdivision 9, Revised Statutes, which gives city councils the powers “to license and regulate the use of streets by persons who use vehicles, or solicit or transact business thereon,” is to be strictly construed. 2 Cooley on Taxation (3 ed.), 1139.
    Whenever a license is made to produce revenue, it becomes a tax. State v. Hoboken, 41 N. J. L., 71; Mays v. Cincinnati, 1 Ohio St., 269; City of Chicago v. Collins, 175 111., 445; 2 Cooley on Taxation (3 ed.), 1137, 1138, 1141; In re Wan Yin, 22 Fed. Rep., 701; Cape May v. Transportation Co., 64 N. J. L., 80; St. Paul v. Traeger, 25 Minn., 248; .Cooley Const. Lim. (7 ed.), 283; 1 Dillon Municipal Corps. (4 ed.), Sections 357, 359; Ward v. Maryland, 79 U. S., 418; St. Louis v. Spiegel, 75 Mo., 145.
    If the license produces a revenue beyond the cost of issuing the license,*and 'keeping the records, and enforcing the ordinance, it becomes a tax and is void. Bennett v. Birmingham, 31 Pa. St., 15; 1 Dillon Municipal Corps., Section 768; State v. Hoboken, 33 N. J. L., 280; Jackson v. Newman, 59 Miss., 385; Kip v. Paterson, 26 N. J. L., 298; Fort ■Smith v. Ayers, 43 Ark., 82; Ex parte Frank, 52 Cal., 606.
    The city cannot, under the guise of a police regulation, impose a trammel on constitutional rights. State v. Julow, 129 l(lo., 163; In re Tie Loy, 26 Fed. Rep., 611.
    It is also contended that this ordinance discriminates against farmers, who only occasionally use said streets, with light loads, in favor of the constant or “habitual” users of said streets, who haul heavy loads.
    This' ordinance is, therefore, arbitrary, and unreasonable, and discriminates against, the plaintiffs and is void. State v. Finch, 78 Minn., 118.
    The farmer is compelled to pay taxes on his own property, and road assessments on the country roads, which city folks use, and he will also be compelled to pay sixty per cent, for .repair of the streets in the city, while he does but little damage as he hauls light loads. Such a proposition is so shockingly inequitable, and unfair, that the ordinance ought not to stand, or it ought to be held inapplicable to these plaintiffs, who reside out of the limits of the city. It discriminates against the farmer. If it does not operate equally upon all, and give to each person, equal protection and benefit it is void. State v. Gardner, 58 Ohio St., 599; Palmer & Crawford v. Tingle, 55 Ohio St., 423; Yemen v. State, 7 N. P., 18.
    It is also contended that said ordinance cannot affect or apply to plaintiffs, as they were beyond the taxing jurisdiction of the chy of Columbus.
    The statute limits the power of the city council in exacting license fees. Section 1536-100, Subdivision 9, Revised Statutes, does not permit the city council to exact a license fee from a farmer who brings into the city the product of his own farm, and who does not carry on a “business” on said streets; or who hauls away merchandise, bought for his own use.
    An ordinance which exacts a vehicle license from certain persons; and which exempts from the operation of said ordinance those who produce and sell products of their own raising, or farm products, is valid. Lamentia v. Columbus, 74 Ohio St., 435; Marmet v. State, 45 Ohio St., 63.
    In the same line and holding that an ordinance cannot be made to apply to farmers marketing the products of their own farms and gardens are: St. Charles v. Nolle, 51 Mo., 122; Davis & Co. v. Macon, 64 Ga., 128; Collinsville v. Cole, 78 111., 114; Marmet v. State, 45 Ohio St., 65.
    The city council has no power or jurisdiction to exact a license of non-residents of the city. East St. Louis v. Bux, 43 111. App., 278; Douglas v. Kansas City, 147 Mo., 428; Cary v. North Plainfield, 49 N. J. L., 110; Commonwealth v. Stodder, 2 Cush., 562; New York v. Hexamer, 59 N. Y. App. Div., 4; Cairo v. Express Co., 54 111. App., 87; In re Jacobs, 98 N. Y., 98; Garden City v. Abbott, 34 ror. Ivans, 283; Bennett v. Birmingham, 31 Pa. St, 15; Western Union v. Fremont, 39 Neb, 692.
    Although an ordinance may be general in its terms it cannot be made to apply to non-residents unless within the spirit and' terms of the ordinance, and powers of the council. Collinsville v. Cole, 78 111, 114.
    Taxing one outside of the city for the benefit of streets inside the city, is taking private property for the public use of a community, of which the outside citizen forms no part. St. Charles v. Nolle, 51 Mo, 122.
    By Section 19, Article I, Constitution of Ohio, public roads which include streets, are declared to be “open to the public without charge.”
    It is also contended that the said ordinance is not of uniform operation. If this license is for the purpose of producing a “vehicle fund,” for the repair of the streets, it then becomes a tax, and must be levied upon all property by a uniform rule at its true value in money (Section 2, Article XII). The ordinance is inflexible, levying tribute upon the scavenger wagon worth $5 equal to the tribute on the auto car worth $1,500 without regard to the value of the property. Nor is it exacted from the owners of street cars which are vehicles under the law. Railway Co. v. Snell, 54 Ohio St, 197; Street Railzvay Co. v. Railway Co., 21 C. C, 391, 64 Ohio St, 550.
    In the case of Sterling v. Bowling Green, 5 C. C, N. S, 217, it was held that the exemption of farmers from the operation of such an ordinance does not render it invalid

      Mr. George S. Marshall, city solicitor; Mr. Charles E. Carter and Mr. John L. Davies, for defendants in error.
    Authority to pass the ordinance in question is found in Section 1536-100, Subdivision 9, Revised Statutes.
    Requiring owners of vehicles using the streets of a city to pay an annual license, and providing that the license moneys be placed to the credit of the street repair fund of the city, is not repugnant to the constitution. Marmet v. State, 45 Ohio St., 63; Tomlinson v. Indianapolis, 36 L. R. A., 413; Bogart v. State, 20 W. L. B., 458; Ex parte Gregory, 20 Tex. App., 210, 54 Am. Rep., 516.
    A non-resident of a city who drives a market wagon or other vehicle upon its streets may be lawfully compelled to pay a license fee or tax, when no discrimination is made against him on account of his non-residence. Tomlinson v. Indianapolis, 144 Ind., 142, 36 L. R. A., 413; Memphis v. Battaile & Co., 55 Tenn., 524, 24 Am. Rep., 285; Kents v. Mobile, 24 So. Rep., 952; Davis & Co. v. Macon, 64 Ga., 128; Frommer v. Richmond, 31 Am. Rep., 746, 31 Graft., 646; Heller v. Mobile, 48 Ala., 218.
    Under an act which authorized the city to license, tax and regulate wheeled vehicles, it has been held that an ordinance making it unlawful for any person to drive over the streets of the city, any carriage, wagon or other vehicle without first obtaining a license therefor, is valid, though it exacts the same license fee from non-resident owners, who habitually use the streets,' that is required of residents, as there is no express inhibition on the legislature to confer such a power on a municipal corporation, and the act conferring the power to exact the license does not restrict it to be exercised only in respect to those residing within the corporate limits. Mason v. Cumberland, 48 Atl. Rep., 136.
   Price, J.

The city of Columbus and its executive officers rely on Subdivision nine (9) of Section 1536-100, Revised Statutes, as authority for the passage of the ordinance involved in this proceeding. That subdivision reads:

“9. To regulate the use of' carts, drays, wagons, hackney coaches, omnibuses, automobiles and every description of carriages kept for hire or livery stable purposes; and to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon; to prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles through the public highways; to regulate the 'transportation of articles through such highways and to prevent injury to such highways from overloaded vehicles, and to regulate the speed of interurban, traction and street railway cars within the corporation.”

Other subdivisions preceding and following, and which compose said section furnish the general powers of municipalities. There are other powers mentioned in Section 1536-100 and 1536-102, Revised Statutes, but they need not be quoted or considered in determining the law of this case. Under the above provision, it is claimed, the council of the city of Columbus has passed and threatens to enforce an ordinance requiring any and every one who would enter upon and use any of the streets of such city with any vehicle described in the ordinance, either for hire or livery stable purposes, as in the first clause of the above sub-section, or for any purpose as specified in the second class, to apply for and obtain a license and pay the prescribed license fee, before such person can lawfully use the streets, and to use such vehicles on the streets without the license is a misdemeanor (so says thé ordinance) for which the owner or controller of the vehicle may be fined in a substantial sum with costs. The city authorities assert that this ordinance is enforceable not only upon resident users of the streets, but also against non-residents of the city who may come in with vehicles named on business of any kind or for purposes of pleasure or social intercourse. In the case at bar they would enforce the ordinance against farmers and gardeners who reside and conduct the farming and gardening outside the city.but who desire to market in the city part of the products of their farms and gardens; and who may visit the city to pay taxes or render jury service or attend couft as a litigant or witness. Or if the spirit of visitation would lead the nonresident user of the vehicle to pass through Columbus on the proper way to reach another city, town, or county, he must obtain a license to use Columbus streets, or go around the city on some other route.

It is one of the findings of the circuit court, and also a fact agreed upon, that when the action on review was commenced, there were four thousand farmers and gardeners, residing outside the city, but in Franklin county, who raise and market the produce of their farms and gardens, and that each owns on an average one two-horse wagon, and one pleasure carriage or spring wagon, drawn by one horse. As it has been found, that each of the four thousand farmers owns, on an average, one two-horse wagon and a one-horse buggy or spring wagon, these farmers would be required to pay $32,000 of the estimated $50,000 to keep the streets in repair — certainly a liberal draft on non-residents who may use the streets often or seldom. There were and are other farmers and gardeners living in the counties adjoining Franklin county, who haul the products of their farms and gardens to the city of Columbus.

The petition alleges and the answer admits that the plaintiffs were required to pay taxes annually or semi-annually in the said city, as the county seat, and their vehicles were used at such times for that purpose, and at other times, as to some of them at least — plaintiffs used the vehicles to convey their children to schools in the city. There is no exception or exemption of any one no matter how circumstanced, if he desires to use one or more of the designated vehicles on the streets of Columbus. You must pay before you enter, is the warning displayed to every non-resident owner of vehicles. We do not mean that pay is exacted on each use of the streets — but there must be a license to cover the period of such use, be it for a year or part of a year. If he enters without a license, he is liable to a fine ranging from five to fifty dollars. When asked for a reason for such demands, it is said, the use of the vehicles mentioned in the ordinance, tends to wear out said streets, and necessitates constant care and repair thereof, and so the court found, but it is not and perhaps could not be found, how much the non-resident owners contributed to the improvement of the streets by means of general road taxation, yet they are classed with residents who may constantly use the streets with heavier vehicles bearing heavier burdens. It is further said in defense, and so found, that it will cost about $3,000 per annum to furnish necessary clerical services, the license blanks, tags and numbers to issue the license and put the ordinance into operation; and it is also found that the care and repair of the streets will cost not less than $50,000 per annum. Does the statute quoted authorize the ordinance in this case, if it applies to non-residents, and is the ordinance reasonable ? The plaintiffs are not tradesmen’ draymen, hack drivers, peddlers, hucksters', or members of a profession within the city, but they are producers living on their own farms and operating farms or gardens outside of the city limits.

These farmers own real and personal property outside the city on which they pay all taxes and assessments provided by law, and these vehicles are a part of such personal property so taxed, and both their real and personal property is subject to taxes to keep in repair the public highways in their vicinity, toward which, property within the city contributes little if anything. Moreover, the owner of vehicles who resides in. the city has free use of the country roads, and without let or hindrance, may operate them on such roads whenever and as often as he may choose. The high speed automobile or touring-car of city resident can rush along the country highway as a terror to the farmer, and nothing is exacted but what he pays the state at large for license, the benefit of which the farmer can receive but a trifle if anything. The big brewery wagon can be freely used to deliver beer to villages within or without the county, and heavy moving-vans may traverse the country roads in pursuit of that line of business, and the country folk can put up no bars to prevent it, or exact a fee for the privilege. The ordinance therefore lacks the spirit of reciprocity and imposes a burden upon the farmer, in addition to the one he must bear alone.

Another observation is also in order. If the city of Columbus may enforce such ordinance against non-residents, so may any other municipal corporation, of which there are several within Franklin county, and if such measures should be adopted by them or some of them, a farmer whose way to Columbus lies through such town or city, would be required to pay further tribute to repair streeets. And as it is found that farmers and gardeners living-in counties adjoining Franklin county, haul the farm and garden products to Columbus,' each municipality through which such farmer would pass could demand the payment of a license fee for the use of the streets until license would become prohibition. What Columbus can legally do in this respect, any other Ohio municipal corporation can do — demand an entrance fee as a condition to the use of the public highway. If such farmer uses one of the vehicles named to pass through Columbus and Franklin county on a mission of business 01-pleasure, even occasionally, or once in a year, he is required to obtain the license.

While it may be within the law for a municipal corporation to require its resident citizens to pay a license fee for their use of the streets, (but we do’ not so decide), we are not ready to hold that it can bar from its streets non-residents and that it may fine one who has the temerity to disregard die exaction of the fee.

It has been said that it is but fair for the plaintiffs' and others like them to pay something towards keeping up street repairs, because they market their farm and garden products in the city, Columbus being their nearest and best market. At first glance this sounds rather plausible, and if the city is self-sustaining and is independent of the trade and business of such farmers, the authority to demand license fee might be on better footing. But the city shut up to itself would die. It obtains most of its sustenance for man and beast from the farmers and gardeners without its limits, and it needs their trade, and to furnish what the city needs vehicles must be used on the streets. Merchants of all classes are largely patronized by such persons, and the commodities of one are exchanged for the commodities of the other; or money, the medium of exchange, is paid by one to the other. Therefore the city is not independent and self-sustaining. It needs the farmer as much as the farmer needs the city.

We are greatly impressed with the view that as to the plaintiffs the ordinance is unreasonable and unfair.

We are not favored with a reference to any case in which this court was called upon to decide the present question. Counsel cite Marmet v. State, 45 Ohio St., 63, as some authority, but in that case an act of the legislature was under consideration. It was entitled: “An act to provide a license on trades, business and professions carried on in cities of the first grade of the first class, and providing the enforcement and collection of fines and penalties for carrying on business without a license, and for other purposes.” One of the questions discussed was the invalidity of the law because it was not of uniform operation, though on a general subject. Another claim was, that it was invalid because the last clause of Section 29 excepted from its provisions farmers marketing the products of their farms in the city.

Marmet was a citizen of Cincinnati, and was arrested on the charge that he had used vehicles upon the streets of Cincinnati without first obtaining a license therefor. It is not necessary to review the points considered and decided in that case, because the contentions here are very different and on facts and under circumstances unlike those in the Marmet case. This court sustained the act includ-' ing said exception as to the farmers.

In the history of the case at bar, we observe that the court of common pleas held that the ordinance is constitutional but that it does not apply to non-residents of- the city. The circuit court held that the ordinance is constitutional, and “applies to nonresidents as well as residents of the city of Columbus, according to the facts of each case, viz: to those who, in the sense of a continued or repeated practice ‘use’ the streets with the vehicles described.” This line of demarcation is very vague and settles nothing, and it is reasonable that both parties now want the question squarely met and decided.

We have light from decisions made in other jurisdictions to which we will give some attention.

In Bennett v. The Borough of Birmingham, 31 Pa. St., 15, it appears that by an act of the legislature, the burgess and town council of Birmingham were authorized to direct all owners of carts, wagons, etc., using the paved streets of said borough to pay such moderate license for such use as they .might, by ordinance, direct. It was held that this did not authorize the imposition of a tax on drays, wagons,- etc., owned by non-residents of Birmingham, and used in carrying goods and produce through the borough from an adjoining-township to Pittsburgh. “The act in question only authorizes the taxation of vehicles belonging to citizens of Birmingham, and those of other persons carrying on some business or occupation in the town of Birmingham, by means of such vehicles. Such statutes and- ordinances are contrary to the usual course of taxation and embarrassing to the public, and ought to be strictly construed.” The ordinance excepted travelers and also farmers bringing their own produce to market.

In the opinion of the court, Lowrie, J., among other pertinent things, says: “There are no doubt inequalities in the burdens which different locations have to bear in regard to roads; but it is impossible to make any better of it by such ordinances as this. If Birmingham may tax all St. Clair township for passing on the streets to Pittsburgh, then St. Clair township ought to be allowed to tax all the people further out — and so with all others similarly situated. There are six or eight municipal corporations at this place, and there is no justice in one more than another having such ordinances; and if they all have them, what is the result? No man having his business in an adjoining township, can drive to town in relation to it without paying a license for his cart or wagon to some one or more corporations, while the people of these corporations can drive through the county at pleasure and without license. And then a citizen in one town cannot get a bag of flour hauled across the line into another, without-finding a drayman who has been able to pay a license for both, nor hire a hack to drive out into the country, without seeing that it has a license for each of the towns through which it has to pass.” The entire opinion is worth consideration and is directly in point.

In Commonwealth v. Stodder, 2 Cushing, 562, the supreme judicial court of Massachusetts had under consideration the validity of certain regulations made by the mayor and aldermen of the city of Boston. The first paragraph of the syllabus and opinion relate to the kind, size, etc., of vehicles that might be used on the streets, and the right to designate certain streets for certain kinds of vehicles, etc. In the second and third paragraphs it is held that the statute (which is copied in the report of the case), did not authorize the'mayor and aldermen of Boston to require payment of money to the city by persons resident of Roxbury, who set up and drive omnibuses and stage coaches from Roxbury to Boston and from Boston to Roxbury, for the conveyance of persons for hire, as a tax or duty upon such vehicles, before using the same.

In The City of St. Charles v. Nolle, 51 Mo., 122, we find the following proposition stated by the supreme court of that state: "So much of the ordinance of the city of St. Charles requiring a license tax for wagons used for pay, as attempted to impose a tax upon wagons of outside residents engaged in hauling into and out of the city, was void as not being authorized by the charter of that city, and the legislature could give the city council no authority to pass such an orfb'nmice. The tax being upon ents’de citizens and for the benefit of those living in the city, would be in effect taking property for private use; that is, for the use of a particular community of which the outside citizens form no part.”

The legislature of 'New Jersey enacted a statute authorizing the council or. other governing body of a city, incorporated borough, etc., to make ordinances, to license and regulate cartmen, hacks, milk wagons, etc., carriages and vehicles used for transportation of goods of any kind, etc., and to fix the rate to be paid for license. Cary v. North Plainfield, 49 N. J. L., 110, is a case where the city of Plainfield in that state passed a license ordinance under favor of above statute. Cary was licensed for that city where he resided, and he was hired to go into the borough of North Plainfield for two loads of furniture to be brought into said city of Plain-field. The borough of North Plainfield had a similar ordinance for license for that locality, which Cary did not observe and he was arrested for its violation. ' In the opinion of the supreme court of that state it is said: “The inconvenience attendant upon the exercise, by every municipality of the state of the power of excluding from its limits all unlicensed vehicles engaged in transporting goods or passengers for hire, is manifest. Its legitimate operation would require the owners of such vehicles to obtain licenses not only from the authorities of the place where their business has its headquarters, but also from every neighboring town into which their casual engagements might call them, or else to unload their vehicles at the border line. A general law having effects so burdensome or so absurd is not to be anticipated, etc. Its terms are satisfied by holding that license taxes are to be imposed only by that municipality in which the business or occupation is carried on or conducted.” After citing: Commonwealth v. Stodder, supra, the court adds: “but when a power to tax for revenue is claimed,, something more than mere temporary presence in the borough must be shown. It must appear that the business to be taxed is carried on in the municipality, and occasional passage or transportation into or through or out of the borough incidental to the pursuit of a business elsewhere established cannot be fairly regarded as localizing the business there,” etc. The court held Cary not liable.

In City of East St. Louis v. Bux, 43 Ill. App., 276, we find the following: “In a controversy touching the violation of a municipal ordinance requiring truckmen and other common carriers to be licensed, the penalty provided for was intended to be imposed upon those only who carried on a business within a given municipality without a license, and that defendant, who hauled goods from another city wherein he was licensed, to a depot within the boundaries of complainant, could not be considered as having been guilty of a breach, of said ordinance.” The authority to license conferred upon municipalities by the statute is construed as limited to those who engage in or carry on business in East St. Louis. Bux, the defendant in error, resided in Bellville, and carried on his business there under a license.

Another case from Illinois is The City of Collinsville v. Cole, 78 Ill., 114, of which the head-note is the following: “An ordinance that 'There shall be levied upon every hackman, drayman, omnibus driver, carter, teamster, cabman or expressman, and all others pursuing a like occupation, the sum of ten dollars for a license,' was held not to embrace a farmer driving his team through the city. The purpose and object of such an ordinance is to impose a tax upon a business, calling, or occupation, and not upon one who occasionally hauls a few loads, in an emergency, for another, when that is not his calling.”

The charter of the city of East St. Louis gave the city power “to license, tax, regulaté and control wagons and other vehicles conveying loads in the city; to prescribe the width of tire of same, the weight of loads to be carried and rates of carriage.” In Joyce v. The City of East St. Louis, 77 Ill., 156, the supreme court of that state held that such authority as to license applied “only to such vehicles in respect of which it is proper and customary with municipal authorities to prescribe rates of carriage, viz: those used by common carriers in the city for hire”; and “one using a vehicle not for hire, but only in the course of his ordinary private business, does not come within the reason nor necessity of any such municipal regulation.”

Akin to this is the decision in Farwell et al. v. City of Chicago, 71 Ill., 269. See also City of Chicago v. Collins, 175 Ill., 445. The ordinance involved in the last case was said to be founded on authority conferred by the statute of Illinois known as the general incorporation act under which the city was organized. Clause 9 of Section one (1), Article 5, confers power to regulate the use of streets. An ordinance was passed providing that all vehicles used upon the streets of the city, including those for private use, for pleasure, etc., should pay an annual license fee, and that any one using a vehicle on street without first obtaining a license, should be fined. The parties who procured an injunction against the enforcement of that ordinance were owners of bicycles or carriages, not used for traffic. or carrying merchandise for hire, but for private use and as a means of locomotion from place to place. The supreme court held the ordinance to be illegal. In the opinion, on page 455, supra, the court said: “The streets and alleys of a city a're held in trust by the municipality for the use of the public, for purposes of travel thereon and as a means of access to and egress from buildings abutting thereon or lots adjacent thereto. The right to travel on and along the streets of a city belongs to the general public, and does not belong to its denizens alone. The right to travel being in the general public everywhere, all persons have a right to pass along and use the streets and alleys of a city in all their parts, the full width and length thereof. The municipality, which is a mere trustee of the public and holds the streets and alleys in trust for that public, cannot deny the right of the public to use the streets and alleys. It cannot assume an exclusive ownership, and deny the rights of the beneficiaries under their trust and arrogate to itself a power greater than that of a mere trustee, and prevent the use of the streets and alleys by individual members of the public. The right of the public to use the streets is the right to use them for purposes of travel in the recognized methods in which the public highways of the state are used. Any method of travel may be adopted by individual members of the public which is an ordinary method of locomotion, or even an extraordinary method, if it is not, of itself, calculated to prevent a reasonably safe use of the street by others. If a right exists in a city council to impose a license fee, by way of tax, on every person using wheeled vehicles thereon, it may in like manner impose such license fee for such use of the streets in every other .manner of locomotion or travel, and reach the man on horseback or the pedestrian walking' along' the same.” And on page 456 it is said: “The city council may regulate the use of the streets and alleys to the extent that it may require sidewalks exclusively reserved for use by pedestrians, and exclude certain character of loads and regulate the width of tires on vehicles used on a certain character of pavements, and provide that the rate of speed shall be much less on certain streets than on others, and otherwise regulate the use of the streets, having in view solely the welfare and safety of the public. The city may also regulate certain occupations, such as hackmen, draymen, expressmen, and the like, for such regulation is of a police character, having reference to the general welfare, as a means of preventing improper exactions and extortions; and for the same reason, a license may be exacted for vehicles used in the transportation of goods and merchandise, or of passengers, or for other purposes of traffic; but such license is an occupation license, and not one for the use of the streets. The license in the latter named case is designed to operate upon those who hold themselves out as common carriers, and a license may be exacted from such as a proper exercise of police power, but no reason exists why it should be applied to the ■ owners of private vehicles used for their individual use exclusively, in their own business, or for their own pleasure, as a means of locomotion.” See Garden City v. Abbott, 34 Kans., 283.

There are other cases that can be cited to same effect, and there* are also cases which hold somewhat at variance from principles heretofore laid down in this opinion.

In a multitude of cases we have examined, the words “license” and “tax” are used interchangeably, and some courts treat of them as meaning the same thing. But when they endeavor to sustain the law or ordinance requiring a license, they locate the authority under the police power of the state and not its taxing power, for by such shifting of authority, some constitutional limitations are avoided.

In other cases the charter or enabling act of the city expressly defined the power to license, or tax, as in Tomlinson v. City of Indianapolis, 144 Ind., 142. And it is but fair to say that the statutory authority for the ordinance, its terms and scope, must be consulted in order to properly weigh the force of numerous adjudications.

Again, the right to exact a vehicle license tax or fee has been carefully distinguished from imposing a license on various trades and professions carried on within a municipal corporation, as is held in Chicago v. Collins, supra.

We have given this case that careful and patient consideration its grave importance demands, and • we are unable to agree with the circuit court in its conclusions. Its judgment fixes no satisfactory or distinct line of demarcation as to who will be affected by the ordinance. It leaves open the way for new controversies, because no one can clearly determine whether he is of the number required to pay for a license or not.

We make the ground clear in so far as the plaintiffs in error are concerned, and hold that the nonresident farmers and gardeners cannot be compelled to pay for a license to use the streets in going to and fro from their homes to the city for the purpose of marketing- their products and trading with the merchants of the city or in visiting the city on business or pleasure. As to them the ordinance is unreasonable and invalid.

The ambition should be for a “Greater Columbus” rather than for a walled city.

Judgment reversed.

Crew, C. J., Summers, Davis and Shauck, JJ., concur.

Spear, J.,

dissenting. The ordinance is to license and regulate the use of the streets of Columbus by persons who use vehicles thereon. The opinion of the circuit court, by Wilson, J., 10 O. C. C, N. S., 199, is to the effect that construing- the term “use” as a continued and repeated practice, the ordinance applies to those who, in the above sense, use the vehicles described. This construction would apply to non-residents as well as to residents, and must be settled in each case according to the facts.

Applying this limitation as. to the construction and enforcement thereof directed by the circuit court, I am of opinion that the ordinance is relieved of any charge of unreasonableness, and may be sustained. On this ground I favor an affirmance of the judgment of the circuit court, and dissent from the judgment of reversal.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Buck v. The State of Ohio.

      Signature of trial judge — Allowing bill of exceptions — Sufficient if endorsed on cover of bill — Section 5301a, Revised Statutes,

    A certificate signed by the trial judge, and endorsed on one of the covers, embracing a bill of exceptions, to the effect that said bill is allowed and signed by the trial judge, is a sufficient compliance with the provisions of Section 5301a, Revised Statutes, as to the making and signing such certificate; and it is not essential to its validity that such bill of exceptions be signed by the trial or other proper judge at the end thereof.
    (No. 11620
    Decided June 8, 1909.)
    Error to the Circuit Court of Hocking county.
    The facts of the case are stated in the opinion.

      Mr. John C. Pettit, for plaintiff' in error.

      Mr. A. R. McBroom, for defendant in error.
   Price, J.

The plaintiff in error was indicted and tried in the court of common pleas for unlawfully cutting timber with intent to defraud the owner thereof. On conviction by a jury, the court assessed a fine of fifty dollars and the costs of prosecution, and ordered that Buck stand committed to the workhouse at Columbus until said fine and costs be paid. A motion for new trial was overruled and a bill of exceptions prepared and filed with a petition in error in the circuit court. Several grounds of error were laid in the petition, which could appear only in the bill of exceptions.

On ■ motion for that purpose, the circuit court struck the bill of exceptions from the files because it was not signed by the trial judge as required by law. The more specific reason appears to be, that while the trial judge signed a certain certificate on the cover embracing the bill, there is no certificate of allowance at the end thereof.

A blank form was used in preparing the bill for signing, which contains brief instructions as to time and notice of filing, etc., which blank when filled, and the bill delivered to the clerk, has the title, “The State of Ohio v. Daniel Buck — Bill of Exceptions.”

After this title come the following entries on the cover:

“Date of the overruling or decision January 28, • 1907. . “D. M. Soliday, Clerk.”
“Exceptions filed with clerk of trial court February 21, 1907. “D. M. Soliday, Clerk.”
“Notice of filing February 25, 1907.
“D. M. Soliday, Clerk.”

Under this is a written consent of counsel for the state, that bill of exceptions might be immediately transmitted to the trial judge. Then follows:

“Transmitted to the trial judge February 25, 1907. “D. M. Soliday, Clerk.”
“Received February 25, 1907.
“Geo. E. Martin,
“Trial Judge.”
“Corrected and allowed this 25th day of February, 1907. “Geo. E. Martin,
“Trial Judge.”,
“Transmitted back to clerk February 25, 1907.
“Geo. E. Martin,
“Trial Judge.”
“Received again by clerk February 25, 1907.
“D. M. Soliday, Clerk.”

• These entries so made on the face of the first page of the cover are correctly copied in the record as either journal or docket entries, which show a complete identification of the bill of exceptions.

Is it a valid bill of exceptions ?

The practice as to preparing, filing and transmitting a bill of exceptions is regulated by Section 5301, Revised Statutes, which provides how exceptions may be taken and filed and the time within which the same must be filed.

When the bill is filed with the clerk of the court, it is made his duty to notify the adverse party or his attorney of such filing, and the adverse party, within ten days after such notice, may file any objection or amendment he may propose to the bill, for the correction thereof. The objections or amendments, or both, if any, must be transmitted with the bill to the trial judge or judges as required by said section.

Section 5301a, Revised Statutes, reads: “It shall be the duty of the-trial judge or judges, upoh the receipt of the bill, to endorse thereon the date it was received, and within five days thereafter to correct the same if necessary, and allow and sign such bill, and immediatelv transmit or cause to be transmitted to the office of the clerk from whom the same was received, said bill and the amendments or objections thereto, if any.”

Then follows a provision as to the absence from the district or circuit of the trial judge or judges when the bill is ready for transmission, and also the steps to be taken in the event of the sickness, death, or other disability of such trial judge; also a provision for extension of time of signing by the judge or judges.

Section 5301 & prescribes what entries shall be made on the appearance docket respecting the bill of exceptions.

Section 5302 provides: “It shall not be necessary to cause an entry to be made upon the journal of the court of the settling, allowance and signing of any bill of exceptions; but the signature of the trial judge, or other judge mentioned in Section 5301a, allowing, settling and signing such bill shall be sufficient evidence of such fact.” In these sections we have the simplified procedure respecting the preparation, filing, transmission, allowing and signing bills of exceptions.

There is no claim in this case that the certificate of the trial judge endorsed on the first page of the cover is insufficient in form or substance, but the claim is that it should be at the end of the bill and not elsewhere.

There is nothing said in the statute, about where the certificate should or must be placed. While, as a general rule, it is placed at the end of the bill, we find no fixed rule on the subject. The trial judge, when he receives a bill of exceptions,-is required to endorse thereon the time of its receipt. His further duties are specifically pointed out, and having made necessarv corrections, he is required to “?llow and sign such bill and immediately transmit,” etc.

The first page of the cover is made a part of the bill and contains the endorsements and entries required by the statute, and these correspond with the entries made upon the appearance docket. In fact, they are copied on the docket. In this way the page of the bill bearing the above endorsements became part of the bill. They are officially signed — some by the clerk of the court, the others by the trial judge — and the genuineness of their signatures is not challenged. No objections or amendments were offered to the bill and it was therefore conceded to be correct. Every circumstance tends to prove that the trial judge intended to execute a proper certificate of the allowance and signing of the bill, and the evidence of his intention is expressed over his signature on a page of the bill set apart for that purpose. We think the statute has been satisfied in all substantial respects, and that the circuit court erred in sustaining the motion to strike the bill from the files. We reverse the ruling on that motion and the motion is overruled. The judgment of affirmance is vacated and the case is remanded to the circuit court with directions to read, consider and pass upon the bill of exceptions.

'Judgment vacated. ■

Crew, C. J., Summers, Spear, Davis and Shaucic, JJ., concur.


author: Shauck, J.

text:
    McGorray, Sheriff, v. Sutter.

      Habeas corpus resorted to by witness — Committed for contempt in-refusing to answer — Is collateral attack — Burden rests on plaintiff — Assumption of witness that answer would incriminate— Not conclusive, when — Law of evidence.

    1. A resort to a suit in habeas corpus by a witness who has been committed to jail by order of the court'of common pleas for refusing to testify is a collateral attack upon the order of commitment, and the plaintiff assumes the burden of showing that it is void.
    2. When a witness refuses to answer a question propounded to him, basing his refusal upon the alleged reason that his answer . would incriminate him, his answer is not conclusive with respect to the incriminating character of the evidence sought to be elicited, and he may be required to answer, if by any inquiry which does not invade his immunity it is made to appear to the trial judge that his answer would not have the tendency claimed by him.
    (No. 11596
    Decided June 8, 1909.).
    Error to the Circuit Court of Cuyahoga county.
    One Norman M. Geer was placed on trial in the court of common pleas upon indictment which charged him with having procured, a criminal abortion upon Acldie Sutter. • She was called as a ■ witness for the state. Upon her examination, questions were propounded to her which she refused to answer because, as she stated, her answer would tend to. incriminate her. - Whether-they would SO' tend was made the subject of -an inquiry by the judge of the court of common pleas, who reached the conclusion that they would not so tend, and that her claim was not made in good faith. The witness, was thereupon ordered to answer the questions, and as she persisted in her refusal she was committed as for a contempt. The question which she refused to answer, and all that we know of the action of the court with respect thereto, appear in the order of commitment, which is as follows: “In the Matter of Contempt of Witness. This day, Addie Sutter, a witness in this action, having been duly sworn as such witness and called upon to testify, refused to answer the following questions propounded to her by the prosecuting attorney, to-wit: 'What, if anything, did you say to him, or he say to you ?’ And the said witness thereupon further refused to answer the following question propounded to her by the prosecuting attorney, to-wit: 'Did the doctor administer to you any treatment in July of this year, in his office at the time you testified the other day that you first saw him?’ The said witness stated that her answer to said questions would tend to incriminate her. And the said witness having been personally examined, touching her said refusal to answer said questions and her reason for such refusal, and the court having heard the evidence adduced in said matter, it is found by the court that the said questions are pertinent to the issues in this case; that her refusal to answer said questions is not in good faith, and that answers to said questions, or either of them, will not criminate said witness, or tend in any way to criminate her.' Thereupon the witness having been directed by the court to answer the said questions and each of them, and the said witness persisting in her refusal to answer the same, the court finds that the said Addie Sutter is thereby guilty of contempt of court. It is therefore ordered that the said Addie Sutter, by reason thereof, pay a fine of $50.00, for which execution is awarded against her, and that she be imprisoned in the jail of this county for the period of ninety days, unless she shall before the expiration of said period purge herself of said contempt, or shall be otherwise discharged.” She thereupon filed in the circuit court a petition for habeas corpus, and upon the hearing the order of commitment appeared as the sole ground for her detention. The circuit court ordered the sheriff to release her from custody, and this petition in error is prosecuted for a reversal of that judgment. *

      Mr. S. V. McMahon, prosecuting attorney, and Mr. William A. Carey, assistant prosecuting attorney, for plaintiff in error.
    A writ of habeas corpus cannot be converted into a writ of error to correct irregularities or informalities. This inquiry is to be strictly limited to the mere question of jurisdiction and power. Ex parte Wagener, 1 Dis., 11; Ex parte Bushnell, 9 Ohio St., 182; Ex parte Shaw, 7 Ohio St., 81; Ex parte Van Hagan, 25 Ohio St., 426; Ex parte McKnight, 48 Ohio St., 588; Church on Habeas Corpus, Sections 315, 317.
    When a witness claims his privilege, but is informed by the court that he must answer, and that his answer cannot be used against him in any criminal proceedings, he must answer, and if' committed will not be discharged on habeas corpus. Church on Habeas Corpus, Section 332.
    It is the well settled rule that the writ of habeas corpus does not perform the office of a writ of error or an appeal in respect to the matters of fact involved in the proceedings complained of. If in those proceedings the court had jurisdiction of the subject-matter and of the person, the validity of its judgment cannot be collaterally attacked on this writ for error in the original suit, nor can the truth of the facts there found be controverted in the new and collateral proceedings. Church on - Habeas Corpus, Sections 227, 340; Ex parte Terry, 129 U. S., 289; Ex parte Cuddy, 131 U. S., 280; In re Tyler, 149 U. S., 164; In re Savin, 131 U. S., 267; United States v. Pridgeon, 153 U. S., 48.
    Under a writ of habeas corpus the inquiry is addressed not to errors, but to the question whether the proceedings and judgment rendered therein are for any reason nullities; and, unless it is affirmatively shown that the judgment' or sentence under which the petitioner is confined is void, he is not entitled to his discharge. Church on Habeas Corpus, Section 227; Turner v. Conkey, 132 Ind., 248; Ex parte Lennon, 33 W. L. B., 34.
    We maintain that a proper ‘remedy other than habeas corpus was afforded the defendant in error by the statutes of Ohio and that her remedy was a proceeding in error. Sections 5649 and 6707, Revised Statutes.
    From the foregoing authorities it is apparent that the only inquiries the circuit court could make were: 1. Did the court of common pleas have jurisdiction to commit? 2. Was the commitment regular ?
    If the first question be answered in the affirmative the time of this court need not be taken to consider the second question for that is disposed of by Section 5729, Revised Statutes, and the cases cited thereunder, and if the first question be decided in the affirmative the allowance of the writ of habeas corpus bv the cUcuit court was manifestly error. Hatch v. St. Clair, 2 C. C., 163; Madden v. Smelts,
      2 C. C, 168; State, ex rel. Hamilton, 3 C. C, 10; Ex parte Mosier, 8 C. C, 324.
    The circuit court had no right or ’power to allow the writ of habeas corpus if it appeared upon the petitioner’s own showing, that, if brought into court, and the cause of commitment inquired into, she would be remanded to prison. Ex parte- Terry, 128 U. S, 289; Ex parte Early, 3 Dec. Re, 105; Ex parte Bushnell, 8 Ohio St, 599; Ex parte Shaw, 7 Ohio St, 81.
    Every reasonable presumption prevails in favor of the regularity and legality of the proceedings of courts of record acting within their jurisdiction and the validity of their judgments, in the absence of affirmative error appearing on the record. Johnson v. Mullin, 12 Ohio, 10; Warder v. Jacobs, 58 Ohio St, 77) Sheehan v. Davis, 17 Ohio St, 571; Wilson v. Giddings, 28 Ohio St, 556; In re Barr, Goebel, 85.
    All the facts essential to jurisdiction are presumed to exist and to have been found by the court and all the proceedings necessary to the validity of the court’s action are presumed to have been taken. 9 Ency. of Evidence, 927, 929, 933; Matthews v. Hoff, 113 111, 90; Jackson v. State, 104 Ind, 516; Steinhardt v. Baker, 163 N. Y, 410; Johnson v. Mullin, 12 Ohio, 10; Trimble v. Longworth, 13 Ohio St, 431; Reynolds v. Stansbury, 20 Ohio, 344, 55 Am. Dec, 459; Beebe v. Scheldt, 13 Ohio St, 406.
    To entitle a party called as a witness to the privilege of silence, the court must see from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer; that if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question. Subject to this reservation, a judge is bound to insist on a witness answering unless he is satisfied that the answer will tend to place the witness in peril. United States v. Burr, 25 Fed. Cas., 38; Wigmore on Evidence, Section 2271; State v. Thaden, 43 Minn., 253; Wharton’s Crim. Evidence (8 ed.), Sections 466, 469; Taylor on Evidence, Sections 1457, 1458; Greenleaf on Evidence (16 ed.), Section 469d.
    If any prosecution or penalty or forfeiture, which the witness fears, be barred by lapse of time; or if the offense has been pardoned, or the penalty or forfeiture waived, or if in any other way, the reason for the privilege has ceased, the privilege itself will cease also, and the witness will be bound .to answer. Taylor on Evidence, Section 4158a; Jones on Evidence, Section 891.
    The court is not bound by the sworn statement of the witness that in his belief the answer would tend to criminate him. Though the witness will be compelled to answer when it appears to the court that such answer will not interfere with the privilege, yet the court should be satisfied of this fact and also that the witness is mistaken or acting in bad faith, when the claim of privilege is made. Jones on Evidence, Sections 888, 889.
    It is the province of the court to decide whether a proposed question has a tendency to criminate a witness; and that it is the duty of the court, while it protects the witness in the due exercise of his privilege to take care that he does not, under the pretense of defending himself, screen others from justice, or withhold evidence which he might safely give. Greenleaf on Evidence, Section 4694; Phillips on Evidence (5 Am. ed.), *933, page 782; 11 Am. & Eng. Ency. Law (2 ed.), 542; 1 Best on Evidence (Morgan ed.), 193.
    To entitle a witness to the privilege of silence, the court must be able to see from the circumstances of the case and the nature of the evidence called for that there is reasonable ground to apprehend danger to the witness, if he is compelled to answer. To this we would add that, when such reasonable apprehension of danger appears, then, inasmuch as the witness alone knows the nature of the answer he would give, he alone must decide whether it would criminate him. State v. Thaden, 43 Minn., 253; 3 Wigmore on Evidence, Section 2271.
    The foregoing is the rule contended for by plaintiff in error. And we maintain that it is one adopted by all the text-writers and is supported by the following adjudicated cases: Calhoun v. Thompson, 56 Ala., 166; Ex parte Senior, 37 Fla., 1; Rickman v. State, 2 Greene (la.), 532; State v. Duffy, 15 la., 425; Mahanke v. Cleland, 76 la., 401; Stevens v. State, 50 Kans., 712; Territory v. Nugent, 1 Mart., *114; Winder v. Diffenderffer, 2 Bland, 166; Commonwealth v. Braynard, Thatcher’s C. C., 146; Ward v. State, 2 Mo., 120; In re ■Moser, 138 Mich., 302; lanvrin v. Scammon, 29 N. H., 280; Fries v. Brugler, 21 Am. Dec., 53; People v. Mather, 4 Wend., 229; Curtis v. Knox, 2 Den., 341; Forbes v. Willard, 37 How. Pr., 193; People, ex rel., v. Forbes, 143 N. Y., 219; Commonwealth v. Bell, 145 Pa. St., 374; Floyd v. State, 7 Tex., 216; Ex parte Park, 66 Am. St. Rep., 835; Ex

      parte Andrews, 100 S. W. Rep., 376; Chamberlain v. Willson, 36 Am. Dec., 356; In re Con. Rendering Co., 66 Atl. Rep., 799; Temple v. Commonwealth, 5 Va. L. J., 366; Kirschner v. State; 9 Wis., 140; State v. Lonsdale, 48 Wis., 348; Ex parte Irvine, 74 Fed. Rep., 954; Brown v. Walker, 161 U. S., 591; United States v. McCarthy, 18 Fed. Rep., 87; Wyckoff v. Wagner, 99 Fed. Rep., 158; In re Walsh, 104 Fed. Rep., 518; Mackel v. Rochester, 102 Fed. Rep., 314; Foot v. Buchanan, 113 Fed. Rep., 158; In re Franklin Syndicate, 114 Fed. Rep., 205; In re Kanter et al., 117 Fed. Rep., 357; In re Levin, 131 Fed. Rep., 389; In re Hess, 134 Fed. Rep., 109; In re Grant, 143 Fed. Rep., 661; United States v. Collins, 146 Fed. Rep., 553; United States v. Collins, 145 Fed. Rep., 709; Ex parte Cohen, 104 Cal., 524; Bradley v. Clark, 133 Cal., 196; People v. Iron Co., 201 111., 236.
    For English cases on the subject: Ex parte Reynolds, 22 Am. L. Reg., 21; Reg. v. Boyes, 1 B. & S., 311.

      Mr. O. W. Broadzuell, for defendant in error.
    A witness is not bound to answer any question that will, directly or indirectly, criminate himself, and he had a right to determine for himself whether the answer would have that effect, was the opinion of the court in the case of Warner v. Lucas, 10 Ohio, 336. This case was decided in 1840 by this court, and has stood as the unquestioned law of Ohio since that time.
   Shauck, J.

The.record before us presents no question respecting the mode of inquiry by which the judge of the common pleas court ascertained the facts upon which he concluded that the answers of the witness to the questions propounded to her would not tend to incriminate her, nor respecting the sufficiency of the facts upon which he based that conclusion. Nor was any such subject of inquiry presented to the circuit court. If the witness desired the judgment of a reviewing court, either with respect to the sufficiency of the facts upon which the trial judge founded his conclusion, or as to the propriety of the mode to which he resorted to ascertáin such facts, it would have been competent for her to take a bill of exceptions presenting the grounds of her complaint as the predicate of a petition in error for the reversal of the order of commitment. By thus directly attacking the order, the error could have been shown, if any had intervened. But by resorting to a suit in habeas corpus, she has elected to meet the presumption, which the present record does not exclude, that the trial court .regularly and properly exercised whatever authority it had in the premises; and she has assumed the burden of showing that the order of commitment is void, because the court was without authority to make it in view of her claim that her answers to the questions propounded would incriminate her. This distinction results obviously from the essential differences between a proceeding in error and a suit in habeas corpus. .It was pointed out in Ex parte McKnight, 48 Ohio St., 588.

We do not suppose that this distinction has been overlooked, either by the circuit court or by counsel for the defendant in error. It is said that the circuit court was of the opinion that the witness should be discharged from custody because the order of commitment was void, the trial judge being without authority to make it. That conclusion results, according to the argument, from the view that the order shows that the witness refused to answer upon the ground that her answers would incriminate her, and that her answer was conclusive with respect to their incriminating character. The view that the answer of the witness should be accepted as conclusive in all cases, is not supported by any reason presented for our consideration, nor can it be reconciled with the generally accepted doctrine upon the subject. It is said, however, that it is not only justified, but required by the decision of this court in Warner v. Lucas, 10 Ohio, 336. That case was decided and reported before the court adopted the rule of preparing an authorized syllabus. Two editions of the tenth volume present different syllabi of the case cited, and both are unsuccessful attempts of the reporter to state the points decided. This will sufficiently appear from a brief analysis of the case. It was a civil action to recover damages alleged to have been sustained by the plaintiff in consequence of the refusal of the defendant to testify, when called as a witness in a former action. It was brought under favor of a statute which provided that there should be such liability for wilfully refusing to testify. It does not appear to have been thought by either counsel, or the court, that the defendant was liable under the statute for exercising a legal privilege or insisting upon a guaranteed immunity. The precise question presented and determined is plainly suggested by the error assigned. Upon the trial in the court of' common pleas of the action for damages, the plaintiff proposed to show what were the questions which the defendant, as a witness, on the former trial had refused to answer, because, as he claimed, the answers would tend to incriminate him, and further to show that his answers thereto could not have the effect which he claimed. To this evidence an objection was interposed by the defendant and sustained by the court. Whether the court of common pleas had erred in sustaining this objection to the testimony, thus giving final effect to the claim of the witness instead of presenting that question for determination upon the trial of the action for damages, was the only question presented to this court. The court concluded that the evidence was competent, and because of the error of the trial court in sustaining the objection to its introduction, the judgment was reversed. As this court decided only that in that case the claim of the witness was not conclusive with respect to the incriminating character of the evidence sought to be elicited, it cannot be said to have decided that the claim of the witness will be conclusive in any case in which it appears to be ill founded, or made in bad faith for the purpose of defeating the administration of justice in the case in which the witness is called.

Should the claim of the witness be conclusive in a case of that character? The answer to that question seems to be suggested by the aphorism that the law regards substance rather than form. Throughout the seven centuries of Magna Charta, prolific source of the provisions of the charters of individual right which we call constitutions, there has been in England and here a persistent departure from the practice of extorting confessions from accused persons; not because of any desire that the guilty should escape punishment, but because the practice is believed to deny to innocence its proper protection. The principle finds expression in our Bill of Rights in the provision that, “No person shall be compelled, in any criminal case, to be a witness against himself.” To this principle we logically refer the immunity of a witness from giving testimony in any case which would tend to incriminate himself, as well as the rule that in order that a confession by an accused person may be competent evidence against him, it must be voluntary. The significance of this is, that a citizen shall not, by coercion or intimidation, be led to render aid in his own conviction of an illegal offense. Every view of the principle and of the rules of evidence founded upon it must effectuate that purpose. But it would be a departure from the principle, and a perversion of the rules stated, to hold that the witness may use the immunity to prevent the discovery of the truth in the case in which he is called, or to shield himself from mere embarrassment or humiliation. The end of the rule is protection of the witness from giving testimony which would tend to convict him of a criminal offense. Certainly the modes of inquiry to which the trial judge may resort to ascertain that the claim of the witness is not well founded must not invade his immunity. He must not extort from the witness a statement which would be a plenary confession of guilt, or the statement of a circumstance which in connection with other circumstances would establish his guilt. But if, in any mode consistent with the immunity, he may acquire the basis of a clear conviction that the claim of the witness is ill founded, he may require him to answer. The judgment under review, and the main proposition of counsel for the defendant in error, necessarily imply'that the trial judge could not, by any permissible inquiry, have become possessed of facts which would justify his conclusion that her answers would not incriminate her. To show that position to be untenable, it is only necessary to suggest that without eliciting any information whatever from her, the trial judge may have learned that her offense had been pardoned; or, by consulting the records of the court in which he sat, that she had been indicted for the offense, and the indictment prosecuted to acquittal or conviction.

The view that the answer of the witness is not conclusive with respect to the incriminating character of the evidence sought to be elicited, is in accordance with the view taken by Chief Justice Marshall in Burr’s case, which, as will appear from the reporter’s abstract of the excellent brief of counsel for plaintiff in error, has been widely commented upon with approval. It was approved in Warner v. Lucas.

Upon reconsideration of the present case, for the reasons stated, the judgment of the circuit court will be reversed.

Judgment reversed.

Crew, C. J., Summers, Spear, Davis and Price, JJ., concur.


author: Davis, J.

text:
    McGorray v. Murphy.

      Enlisted man of Ohio National Guard — Is a soldier in the United States Militia — And liable to trial by court martial — Proceedings of military court — Cannot be reviezved upon habeas corpus, when.

    1. An enlisted man of the Ohio National Guard is a soldier of “the organized militia” of the United States, as defined in the Act of Congress approved January 21, 1903, entitled: “An act to promote the efficiency of the militia, and for other purposes” as amended by the Act of Congress of May 27, 1908; and as such soldier he is liable to trial and punishment by court martial as provided in the code of Regulations of the Ohio National Guard and the Articles of War of the United States as adopted in said code of regulations.
    2. The proceedings of a military court cannot be reviewed upon habeas corpzis, when -it appears that the military tribunal has jurisdiction over the offense charged and that the offender is a person who is amenable to its jurisdiction.
    (No. 11573
    Decided June 8, 1909.)
    Error to the Circuit Court of Cuyahoga county.

      Messrs. Myler & Turney, for plaintiff in error.

      Mr. Thomas Gibbons, for defendant in error.
   Davis, J.

The defendant in error made application to the court of common pleas of Cuyahoga county for a writ of habeas corpus representing that he was unlawfully restrained of his liberty by the ' sheriff of that county upon the pretext that the relator had used insulting language to one Captain Lock of the Ohio National Guard. The return endorsed on the writ disclosed that the sheriff held the relator under the following • authority: “Cleveland, Ohio, October 27, 1908. To the sheriff of Cuyahoga county. Sir, This is to notify you that William C. Murphy has been sentenced to confinement in the county jail of Cuyahoga county for fifteen days, commencing at noon, October 27th. Frank E. Lock, Captain Fifth Infantry, O. N. G.” Upon the hearing in the common pleas court it appeared from the relator’s own testimony that he was under twenty-one years of age when he enlisted ; that he had served one year and a half without having applied for discharge on account of minority; that he was arraigned before the summary court officer of the regiment and charges read to him and he pleaded-guilty thereto; that he was then detained at the armory until Captain Lock came and told him that he was sentenced to serve fifteen days in the jail and he was then taken to the jail, where he was held until the time of the hearing on the application for a writ of habeas corpus. It also appeared, from the testimony of the relator and of Captain Lock, that the relator was a private soldier in Company F of the Fifth Regiment of Infantry of the Ohio National Guard, of which company Frank E. Lock was the captain; and that the relator as such private had received money from the United States government and had signed government pay-rolls. Upon the facts thus appearing the court of common pleas found that Murphy was not unlawfully restrained of his liberty, and remanded him to the custody of the sheriff. Upon a petition in error filed the same day in the circuit court, that court reversed the judgment of the court of common pleas for error “in refusing to grant the prayer of the petition” and discharged the orisoner.

We think that it clearly appears from this record that Murphy is a soldier of “the organized militia” of the United States, in the National Guard of Ohio, as defined in the Act pf Congress approved January 21, 1903, entitled: “An act to promote the efficiency of the militia, and for other purposes” as amended by the act of May 27, 1908; and that as such soldier he was liable to trial by court martial and punishment under the 20th Article of War of the United States, adopted in Article III, Par. 14, of the Regulations of the Ohio National Guard, which reads as follows: “Any officer or soldier who behaves himself with disrespect toward his commanding officer, shall be punished as a court martial may direct.”.

It has not been made to appear jn this record that there was anything illegal or irregular in the trial, conviction or punishment of this soldier; and if there were, in the view which we take of the status of the defendant in error, we are not of the opinion that the civil courts of this state have any right to review the proceedings of a military court which has proceeded 'within its jurisdiction. It is true that objection was made that the sheriff was detaining the prisoner without the authority of a strictly formal and regular commitment; but it is provided in Section 5726, Revised Statutes, that “if the jurisdiction appear after the writ is allowed, the person shall riot be discharged by reason of any informality or defect in the process, judgment or order.” In the communication from Captain Lock to the sheriff, which the latter produces as his authority for detaining the relator, it appears that the relator was sentenced, which could only be understood to have occurred after a trial and conviction, and it was long ago held by this court that, “A habeas corpus cannot be used as a summary process to review or revise errors or irregularities in the sentence of a court of competent jurisdiction. Imprisonment under a sentence cannot be unlawful unless the sentence is an absolute nullity.” Ex parte Shaw, 7 Ohio St., 81; Ex parte Van Hagan, 25 Ohio St., 426. Nor can it avail anything to the defendant in error that a sheriff is a civil officer and ordinarily acts in that capacity and that when receiving prisoners sentenced by civil courts his authority ordinarily is evidenced by a formal commitment, because in this instance he was acting as the instrument of a military court and in such case a commitment is not necessary. In field service the offender is taken to the guard-house without ceremony or preliminaries. In the absence of a military prison he is delivered to a sheriff or jailer^upon arrangement with the latter.

But inasmuch as it is beyond dispute that the relator, defendant in error, is a soldier of the Ohio National Guard and of “the organized militia” of the United States, that he was charged in a summary court martial with a purely military offense and pleaded guilty thereto, and that he was sentenced therefor in accordance with the military regulations, there can be no doubt that the summary court had jurisdiction of the ‘subject-matter as well as of the person of the offender (Sections 3057, 3058 and 3064, Revised Statutes). When it appears that a military court has jurisdiction over the offense charged and that the offender is a person who is amenable to its jurisdiction, it is well settled that its proceedings cannot be reviewed collaterally upon habeas corpus. The consensus of the cases is very concisely stated by Brewer, J., in In re Grimley, 137 U. S., 150, as follows: “It cannot be doubted that the civil courts may in any case inquire into the jurisdiction of a court martial, and if it appears that the party condemned was not amenable .to its jurisdiction, may discharge him from the sentence. And, on the other hand, it is equally clear that by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court martial; and that no mere errors in their proceedings are open, to consideration. The single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the petitoner remanded. That wanting it must be sustained and the petitioner discharged.”

Many other cases hold to this view. We cite only a few of them. Ex parte Mason, 105 U. S., 696; In re Davison, 21 Fed. Rep., 618; Barrett v. Hopkins, 2 M’Crary R., 129; In re Crain, 84 Fed. Rep., 788.

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

Reversed.

Crew, C. J., Summers, Spear, Si-iauck 'and Price, JJ., concur