source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    Railway Co. v. State.

      Railroads — “ One dollar per mile” fee — Act creating, construed— Constitutional law.

    The act of April 15, 1889 (Section 251a Revised Statutes), requiring “ every corporation or company operating a railroad or any part of a railroad within this state" to pay to the Commissioner of Railroads and Telegraphs a “ fee ” of one dollar per mile for each mile of track operated hy it within this state, contravenes sections two and five of article twelve of the constitution of this state.
    (Decided March 2, 1892.)
    Error to the Circuit Court of Franklin county.
    On May 1, 1890, the state of Ohio, by its attorney general, in an action theretofore begun and then pending in the court of common pleas of Franklin county, filed the following amended petition:
    "The plaintiff says: That the defendant is a corporation duly incorporated under the laws of the state of Ohio, having its principal office in the city of Columbus, in said state, and that on the first day of September, 1889, it operated two hundred and seventy-four and sixty-three hundreths (274.63) miles of railroad within the- state of Ohio.
    “ That on the 16th day of October, 1889, said defendant filed its annual report, duly verified, for the year ending on the 30th day of June, 1889, in the office of the Commissioner of Railroads for this state.

      “ That it was the duty of the defendant to have filed said report oh the first day of September, 1889, and to have paid on that day to the Commissioner of Railroads, a fee of one dollar ($1.00) per mile for each mile of track operated by it within the state of Ohio; but that the defendant failed and refused, and still fails and refuses, to make said payment, or any part thereof, to the commissioner, or any one for him.
    “Plaintiff says that by reason of the failure of the defendant to make said payment, or any part thereof, there is due it from the defendant, the sum of $274.63, for which it asks judgment, with interest from the 1st day of September, 1889.
    “David K. WatsoN,

      Attorney General."

    To this amended petition a demurrer was interposed by the railway company, which was overruled by the court, and the railway company not desiring to plead further, a judg ment was rendered against it for the amount claimed with interest, which judgment was affirmed by the circuit court in a proceeding brought in that court by the railway company to obtain its reversal: whereupon the present proceedings were begun in this court to reverse the judgment of said courts.
    Brief of Watson, Burr & Livesay, for plaintiff in error.
    I. The first problem is to determine the nature of this law, and we respectfully ask the attention of the court to the following question, viz: What was the object and purpose of the legislature in laying this exaction ? Was it for the purpose of revenue, or was it an incident to the exercise in some of its forms of the police power? The answer to this question will, as it seems to us, go far towards settling the case. If it is the former, we hope to show the law to be clearly unconstitutional. If it is the latter, and the exaction ¿-oes no further than the police purpose to be attained, then it is not a revenue or tax law, but the fee is a mere incident to regulation.
    From the original creation of the office of Commissioner of Railroads 'and Telegraphs, to the year 1889, a period of twenty-two years, the office has existed as a part of the executive branch of the state government, and has been supported from its general revenues.
    The amendment in question (Ohio Raws, 86, 351) deals solely with the payment of a fee. No other change whatsoever was made in the law. No additional burden was put upon the state, no new duty upon the officer, nor was any corresponding benefit conferred upon the companies, by the passage of this supplementary section. Its whole and only object was to put money into the hands of the commissioner to be paid forthwith into the treasury to the credit of the general revenue fund.
    There was no attempt, on the part of the general assembly, to disguise the true object of the law, or bring the exaction within the scope of any exercise of the police power. Home Ins. Co. v. State of New York, 134 U. S... 594; Henderson v. New York City, 92 U. S., 259; Brown v. Maryland. 12 Wheat. 419; State v. Hipp, 38 Ohio St., 199; Exchange Bank v. Hines, 3 Ohio St., 1.
    The reasonable and natural effect of the law in question, and we may add its only effect, is to add the sum of one dollar per mile to the taxation of railroad property as prescribed in section 2774, and the other sections of the statutes relating thereto, and to increase by so much the general revenue of the state. Peyton v. Bliss, 1 Woolw., 170, 173; The Nashville, 4 Biss., 188.
    That it'is not an assessment for benefits as understood in Ohio, is clear on several grounds.
    It is a matter of common history that the office of Commissioner of Railroads and Telegraph s was not established for the benefit of railways, but for the benefit of the public as against the railroads. Field v. The Commissioners of. Highland Co., 36 Ohio St., 476.

      The attorney general also seeks to maintain the charge in question as a license fee, and cites several cases in which license fees have been sustained. But it is not a license fee. Adler v. Whitbeck, 44 Ohio St., 539; Anderson v. Brewster, lb. 576; Senior v. Ratterman, lb. 661; Marmet'v. The State, 45 Ohio St., 64.
    Again the attorney general likens the tax in question to an inspection fee, and cites the case of Gas Co. v. The State, 18 Ohio St., 238.
    The supreme court in the case cited held this act constitutional, and the assessment valid, basing its decision however, purely upon the ground that the act was an inspection law, and that the fees to be paid were purely inspection fees.
    All inspection laws, probably without exception, are both for the general benefit of the public and«the particular benefit of the individual whose goods are inspected. Gibbons r. Ogden, 9 Wheaton, 1.
    Again, the attorney general cites the case of The State, ex rel. v. The Judges, 21 Ohio St., 1, in support of this law.
    That case related to the fees paid the probate judge, clerk of courts, sheriff, auditor and treasurer.
    The judgment of the court was based expressly, so far as concerns the question now at issue, upon the fees being compensation for official services rendered and facilities afforded to persons requiring, and who are- especially bene-fitted by, the performance of such services.
    Finally, the attorney general seems to contend that the tax in question is valid, for the reason that the legislature alone has power to determine in what mode and how much corporations may be taxed. In the absence of constitutional restraints, no doubt this is true. But the doctrine is not peculiar to corporations. The extent of the taxation, and what property or kinds of business shall be taxed, whether of natural or artificial persons, are matters solely within the legislative discretion. Hill v. Higdon, 5 Ohio St., 243, 245; Cooley, Constitutional Limitations, 632, 633; Cooley on Taxation, 43 et seq.

      II. We claim the law to be unconstitutional on two1 grounds. 1. The act in question violates article XII, sec. 5 of the constitution.
    As the chapter relating to the Commissioner of Railroads and Telegraphs stood before the amendment of 1889 was interpolated, the payments of money therein provided for were limited to fines, forfeitures and penalties. These were not taxes or fees, and therefore the above constitutional provisions did not require the object to which the money was to be applied to be designated. They were simply to be paid into the state treasury (sec. 265). But the levy of one dollar per mile annually upon the mileage of each railroad is, by whatever name it may be called, a tax’, and before the legislature could lawfully levy such tax, it was necessary that the law imposing the tax should state distinctly the object to which the same should be applied. People ex rel. Hopkins v. Board of Supervisors of Kings Co., 52 N. Y., 556, 567; Dean v. Lufkin, 54 Tex., 264.
    2. The chief objection which we urge against the law is its violation, as we believe, of art. XII, sec. 2, of the constitution. People ex rel. v. Albertson, 55 N. Y., 55; State v. Frame, 39 Ohio St., 899,414; Hipp v. State, 38 Ohio St., 199,
    Brief of J. H. Collins, also, for plaintiff in' error.
    The law is in violation of section 2, article XII, of the constitution.
    It is also in violation of section 5, article XII, of the constitution.
    The claim of the attorney general is that this fee partakes more of the nature of an assessment than a tax, and for that reason was clearly within the power of the legislature. The distinction between an assessment and a tax proper is that the former is a local taxation for the purpose of paying for some improvement whereby a peculiar benefit arises to the parties, and is in this manner distinguished from general taxation; and the claim is made that this is an assessment for a benefit peculiar to the railroads of the state, and that that benefit consists in the fact that the office of railroad, commissioner has been established, and that he from year to year publishes his reports, and that the publication of these reports and other services which he renders by virtue of his office are peculiarly beneficial to the railroad.
    The court is not authorized to infer from the provisions of the law creating the office of railroad commissioner and prescribing his duties that they are beneficial to the railroads; but on the contrary, the office of railroad commissioner and the passage of laws conferring powers upon him which he possesses, partake rather of the visitorial powers of the state, coupled with what in common parlance is known as the police powers; police powers being alwaj^s exercised for the benefit of the people at large, and the same may be said with regard to the visitorial powers.
    If it is a tax, then it is not assessed according to the true value in money of the property, but rather according to the length in miles of the railroad track; and if a tax, it is not levied in pursuance of law, nor does the- law state to what purpose the money arising therefrom shall be applied. If the theory of the attorney general is correct, that the fee should be paid for the number of miles operated on the first day of September of each year, it would seem to follow that the railroad commissioner was authorized to determine arbitrarily what number of miles each railroad company operated on that day, because no papers in his office would furnish the information; and there was no opportunity whatever for a hearing in any form, but the money was taken under the compulsory and arbitrary power of the railroad commissioner, and would amount to depriving them of property without due process of law, and, in fact, without-any process of law.

      David K. Watson, Attorney General, for defendant in error.
    Concerning the constitutional objections, to the effect that the action can not be maintained, it will be observed' that the sections of the constitution cited by counsel refer to taxes, and establish rules by which taxes shall be levied, and I assume it will be admitted by counsel that unless they can bring the act of April 15, 1889, within these provisions •of the constitution, that act will stand.
    The position' I take is, that money paid by a corporation in compliance with an act of the general assembly, in consideration of a benefit received, is not, within the meaning of the constitution, such a tax as is ordinarily levied upon property, but that the money the railroad companies (in this •case) are required to pay by virtue of this supplementary section, partakes more of the nature of an assessment than of a tax, and it was therefore clearly within the power of the legislature to pass the act. Bouvier Raw Die.
    It is in this sense, in which I claim the legislature transcends no constitutional provision when it requires railroads to pay a fee. The legislature did not assume any special control or government over, or require any special report or work from, the railroads in the state, until the passage of the act of 1867, other than such as was required of them generally by the Ohio statutes.
    Unquestionably, the purpose of the legislature in requiring the railroads to furnish such reports was to establish a bureau of information for the benefit of the public, and the benefit of the railroads by the state and its expense. These corporations had' grown to enormous proportions. They had invested millions of money,' and controlled thousands of employes, and constituted the great channels of commerce. It was proper, therefore, for the general assembly to take hold of, and legislate upon, this subject. The annual report which the railroad commissioner was required to make by the act creating his office, was intended to be, and was, and still is, of almost incalculable benefit to the roads. Information dispersed through this department of the state government, is eagerly sought and taken advantage of by the various railroad companies.
    No one will question that a special favor and benefit was conferred upon the railroads of the state by the establishment of the office of railroad commissioner. Such department of our state government was necessarily attended with large expense. The commissioner was paid a salarj’-. The act creating the office allowed him to employ one or more clerks, and the report which he is required to publish is a voluminous and expensive document. All this expense was borne by the state. The purpose of the general assembly in passing the supplementary section, the constitutionality of which is involved in this case, certainly was to require the railroads to bear a portion of the expense of the office of railroad commissioner, inasmuch as they received large benefits from the establishment of such an office. The word “tax” is not used in the act complained of. The language is, “ at the time of the filing of the report required by section 251, every corporation or company operating a railroad or any part of a railroad in this state, shall pay to the commissioner a fee,” etc. The word “fee”.as used in this sense, is synonymous with the word “assessment,” as defined by Bouvier. Questions of a similar character have frequently come before the courts of our state, and the levying of an assessment or a fee, has uniformly been sustained. State v. Gasley, 5 Ohio, 15; Marmet v. State, 45 Ohio St., 71; Cincinnati v. Buckingham, 10 Ohio, 257.
    A subsequent case arose in the same city which involved! the right of the mayor to fine a party for neglecting or refusing to take out a license for a trade in that city according to the ordinance, which required draymen and those following similar occupations, to pay a given amount each. 15 Ohio; 644: Cincinnati v. Bryson, 15 Ohio, 625; Baker v. City of Cincinnati, 11 Ohio St., 540; Zanesville v. Richards, 5 Ohio St., 589-593; Hill v. Higdon, 5 Ohio St., 243-247; Reeves v. Treas. Wood County, 8 Ohio St., 333; Cincinnati Gas Light and Coke Company v. State, 18 Ohio St., 238; Western Union Telegraph Company v. Mayer, 28 Ohio-St., 521.
    But the broad ground upon which the validity of this act rests, is that it is a matter of legislative discretion. Therefore, unless the act is plainly in violation of the constitution, the court will not interfere. What laws are wise or unwise, good or bad, necessary or unnecessary, is not for the determination 'of the court, but the legislature. In construing; constitutions, courts interpret the organic law of the state. They do not legislate by assuming to usurp legislative authority. “ legislative power in this state shall be vested in a general assembly,” .is the provision of article II, section 1, of our constitution. Here, then, is the source of legislative power. Here is found the authority for the general assembly to pass laws. The organic law of the state, the constitution, says the legislative power of the state — that is, the law-making power of the state — is vested in the general assembly. Such being the case, what are the limitations to this power? How far may it go? When does the legislature transcend its limits? The question is judicially answered. Baker v. City of Cincinnati, 11 Ohio St., 542; Marmet v. State, 45 Ohio St., 64; Milwaukee v. Helfen-stein et al. 16 Wis., 136; Leavenworth v. Booth, 15 Kansas, 627; New York v. The Home Insurance Co., 92 N. Y., 328; Delaware Railroad Tax Case, 18 Wall., 206-231; Californian. Pacific Railroad Company, 127 U. S., 1,41.
   Bradbury, J.

The constitutionality of the act of the general assembly of the state of Ohio, passed April 15, 1889, 86 Ohio Raws 851, is involved in the determination of the case. That act reads as follows:

“SECTION 1. Be it enacted by the General Assembly of the state of Ohio, That section 251, of the Revised Statutes, be supplemented as follows ;■
“Sac. 251 a. At the time of filing the report required by section two hundred and fifty-one, every corporation or •company operating a railroad, or any part of a railroad within this stare, shall pay to the commissioner a fee of one dollar per mile for each mile of track, whether main, branch, double or side track, operated by them within this state. Any corporation or company failing to pay such fee, at the time precribed, shall forfeit and pay a sum of not less than •one thousand nor more than five thousand dollars. All fees received by the commissioner under this section shall be paid by him into the state ^ treasury, upon an order from the .auditor of state.

Section 251, Revised Statutes, to which the section above •quoted is supplementary, requires the president, etc., of any railroad situate in whole or in part within this state, to file' in the office of the commissioner of railroads and telegraphs, a report containing a minute and elaborate account of its business and transactions for the preceding year.

The constitutionality of the section imposing a fee of one dollar per mile of track, is assailed on two distinct grounds: (1.) That it contravenes section,2, article XII, of .the constitution of this state, which provides that “Raws shall be passed, taxing by a uniform rule, all moneys, credits, investments * * * * and also all real and personal property', according to its true value in money.” * * (2.) That it violates section 5 of the same article (XII) which pr ovides that “No tax shall be levied, except in pursuance of law; and every law imposing a tax, shall state, distinctly, the object of the same, to which only, it shall be applied.”

If this exaction from railroad companies, imposed according to trackage, is a tax, within the meaning of the constitution, then it falls within the inhibition of both of those sections of our coustitution. Within the inhibition of section II, because the railway property, including tracks, within the state, is taxed by the general taxing laws of the state, at its true value in money, and the tracks of a railroád, being part of its property, is subjected to a burden not imposed upon any other property within the state, and not imposed “according to its true value in money;” and within the inhibition of section 5, because it fails to state the object for which the tax is levied. The question of the constitutionality of the section, therefore, must depend upon whether it shall be held to levy a tax or'not, within the meaning of the constitution, and counsel direct their argument, in great measure, to the discussion of this point.

Counsel for the state contends, at one stage of his argument, that the exaction is not a tax, but, instead, partakes-more of the nature of, and should be treated as, an assessment levied according to benefits, which, it is claimed, accrue to the railroads operated within the state, by the provisions of the act creating the office and prescribing {lie duties of the commissioner of railroads and telegraphs.

We are so accustomed to associate the doctrine of assessments, levied upon property 'according .to tbe benefits that may, accrue to it, with its usual subjects -of application, some improvement of a local character, such as sidewalks, grading and paving highways, and constructing and maintaining ditches and the like, that the two are with difficulty separated in our mental operations;- but, nevertheless, there may be no such necessary connection between them as .to forbid a far wider extension of the principle, and its application to many other and perhaps widely varient subjects. But, however this may be, it is not necessary to pursue the speculation further, for the sum exacted is an arbitrary one, having no apparent connection with any benefits conferred by the act itself, or that to which it is supplementary, and the law fails to attempt in any manner, whatever, to provide a method by which any relation between the benefits and burdens that it confers or imposes, can be ascertained; but simply provides for the payment of a fixed sum which is to be applied solely to swell the general revenues of the state. None of the features heretofore present, in all acts of the legislature which provide for assessments upon property, according to the benefits it receives from the operation of law, are discernable in the act under review, and it cannot be assigned a place in that class of legislation.

The power of the legislature to levy special exactions to be applied in payment of the expense of governmental supervision over certain .lines of business, which the state in the exercise of its police powers may supervise, was maintained by fhis court-in case of The Cincinnati Gas Light & Coke Company v. The State of Ohio, 18 Ohio St. 237. That case involved the constitutionality of an act of the general assembly'of this state passed April 6,1868, 63 Ohio Raws, 164, (S. & S. 158), providing for the inspection of gas-meters. The act provided for the appointment of' an inspector, and prescribed his salary, provided also for the purchase of such apparatus as might be required in the performance of the duties of his office, and for the purpose of paying the salary of the inspector and the cost of the necessary apparatus to enable him to perform his duties, provided that_ a sufficient sum therefor should be assessed against the several gas companies of the state according to their respective appraised valuation. In the 18 Ohio St., 287, the power of the legislature to levy the exaction imposed upon gas companies, by the act above mentioned, was assailed, upon the ground that it contravened the constitutional rule of equality in levying taxes, prescribed by sec. 2 of article XII of the constitution. This court, however, sustained the act. The opinion of the court was delivered by Judge Brinicerhoff; and while it may be contended that some illustrations are found in the opinion of that learned judge, not strictly apposite to the case, yet the opinion, taken as a whole, clearly shows that the dceision was put upon the ground that the exactions levied upon the several gas companies, were not a tax within the constitutional meaning of that term. This view is supported by the following quotation from that opinion: “It is settled by the repeated decisions of this court, in Hill v. Higdon, 5 Ohio St. 243; Reeves v. Treasurer of Wood County, 8 Ohio St. 333: and Baker v. The City of Cincinnati, 11 Ohio St, 534, that the section of the constitution just referred to is only applicable to, and furnishes the governing principle for, all laws levying taxes for general revenue, whether for state, county, township, or municipal corporation purposes. Now, although the assessment or charge upon the gas companies of the state imposed by the statute in question may be a tax, in the widest import of the word, it certainly is not a tax for purposes of general revenue. It is the assessment of a charge for a special purpose growing out of the exercise of the supervisory power of the government over the business in which these companies are engaged.”

It is true that an examination of the act above mentioned, providing for the inspection of the gas-meters, will disclose provisions highly beneficial to the gas companies, and it is contended that therein it differs from the act providing fofa'commissioner of railroads and telegraphs; the latter act, it is said, imposes burdens on the railroads of the state instead of conferring benefits. An inspection of this latter act will disclose provisions, some of which are burdensome while others are beneficial; but, whether the one or tbe other predominate, we do not think it material to inquire in this connection, for we apprehend that the question whether the act before mentioned, relating to the inspection of gas-meters, etc., was upon the whole beneficial, rather than burdensome, to the gas companies of the state, did not bear materially upon the depision of the court in 18 Ohio St. 237. The ground upon which that decision was put, we think, was that the business of manufacturing and selling gas was one that fell within the police or supervisory power of the state, and that the expense necessarily attending upon its supervision could lawfully be charged against the gas companies, because .the exaction made for that purpose was not a tax within the constitutional meaning of that word.

It cannot, we think, be denied that the business of transporting passengers and freight by the railroads within this state, is as clearly within the supervisory, or police powers, of the state as is that of making and vending gas; but while this is so, it does not aid in upholding the statute now under consideration, for that statute does not attempt, as the gas inspecting statute did, to provide a fund to be directly applied to liquidate the expenses attending the supervision.

What is this, statute? Its constitutionality must be determined by its operation. It provides in terms that there be placed upon each mile of railroad track within this state an exaction of one dollar per annum; the statute calls it a “fee,” but its nature is not affected by the name that may be assigned to it. It is an exaction levied upon railroad tracks, and railroad tracks are property. It does not differ in principle from a fixed sum, levied upon all farmers of the state, for each acre of land of which they may be seized, or each head of horses or other live stock that they may own. In both instances the tax is levied upon property, but it is neither leived “according to its true value in money” nor uniformly upon all property; both of which are constitutional requirements (sec. 2, art. XII), if it is a tax within the constitutional meaning of that word. That it is such a tax, we think, there can be little, if any, doubt. A tax is “a pecuniary burden imposed for the support of the government.” * * * “Burdens or charges imposed by the legislative power of a state upon persons or property to raise money for public purposes.” 2 Bouvier, 705. The money raised by this section under consideration is directed to be paid into the state treasury; it becomes a part of the funds of the state applicable to any conceivable public purpose. There is not a word in the section under consideration, or in the act to which it is supplementary, to indicate a purpose that the fund raised shall be limited, or even in any way specially applied, to the expenses incurred in super, vising the railroads of the state. A law like this — the direct and only purpose it can accomplish, being to create a a fund by an exaction on property to be paid into the state treasury to be used indiscriminately for any and all public purposes — must be regarded as creating a tax. It bears no resemblance to, and should not be confounded with, that class of laws enacted by the legislature, the immediate object of which is to call into active operation the police powers of the state, but which, incidentally or indirectly, may cause the production of public revenue.

Judgments of the ciraái and court of common pleas reversed, and petition dismissed.


author: DickmAN, J.

text:
    Costello v. Wyoming.

      Classification of villages — Constitutional law.

    1. A11 act providing that, in any village in any county containing a city of the first grade of the first class, in which no sidewalks have already been constructed under the provisions of sections 2334a, 2334b and 2334r, of the Revised Statutes, the council of such village may construct sidewalks wherever such sidewalks have not been already laid, and assess the costs and expense of such sidewalks upon the abutting lots and lands in the corporation, according to the front foot of the property bounding and abutting upon the improvement, does not furnish a proper classification for the purpose of legislation of a general nature designed to have a uniform operation throughout the state.

      2. The act, entitled “an act to authorize villages to levy special assessments, for the construction and improvement of sidewalks, and to be supplementary to section 2328 of the Revised Statutes, and known as section 2328#,” passed April 16, 1891 (88 Ohio T. 311), is in conflict with section 26, article II. of the con-stitirtion, which requires that all laws, of a general nature, shall have a uniform operation throughout the state.
    (Decided March 8, 1892.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error, Charles A. Costello, commenced the original action in the court of common pleas of Hamilton county, against the village of Wyoming, the defendant in error, and filed the following petition:
    “The plaintiff, Charles A. Costello, says that the defendant, the village of Wyoming of this county, was duly incorporated under the laws of the state of Ohio, providing for the organization of municipal corporations, and that the plaintiff is a resident within said village, and a tax payer of said village, and the owner of a large amount of real estate therein; that the said plaintiff requested, in writing, the solicitor of said village, to bring this action on behalf of the said village of W3'-oming, and that such solicitor declined so to do; that this plaintiff brings this action on behalf of the said village of Wyoming, being authorized so to do by the provisions of the statutes of this'state; and for cause of action herein, said plaintiff says,- that the said village of Wyoming, through its officers and agents, is preparing and proceeding .to construct sidewalks in and upon the streets of such village, and that the council of such village has passed the necessary resolution authorizing the construction of such sidewalks, and this plaintiff further says that said village council is proceeding to issue bonds for the purpose of defraying the cost and expense of the construction of such sidewalks in said village, all of which action, on the part of said village, its officers and agents, is, as this plaintiff claims, without authority of law.
    “ This plaintiff further says, that the said defendant, its officers and agents, claim the authority and right to construct sidewalks as hereinbefore set forth, under and in pursuance of the provisions of an act of the general assembly of the state of Ohio, entitled, “An act to authorize villages to levy special assessments, payable iu annual installments, for the construction and improvement of sidewalks, and to be supplementary to section 2388, of the Revised Statutes, and known as sec. 2828a,” passed April 16, 1891.
    “This plaintiff avers that said statute is wholly unconstitutional, being a law of a general nature, and confined iii its operations to Hamilton county, and for other reasons apparent upon an examination of said statute.
    “Plaintiff further says that the construction of said sidewalk and the levying of taxes upon propertjr of this plaintiff and the other tax-payers of said village, for the purpose of paying the cost of such construction, would be a great and irreparable injury to this plaintiff and the other tax-payers of said village, and for which injury they have no adequate remedy at law.
    “Said plaintiff therefore prays the order and injunction of this court restraining the defendant, the village of Wyoming, its officers and agents, from the construction of such sidewalks in said village, and also enjoining and restraining the said village, its officers and agents, from issuing the bonds of said village iu any sum or amount whatever, for the purpose of defrajdng the cost of the construction of sidewalks in said village, and for such other and further relief as may be just and equitable.”
    To this petition there was a general demurrer. The demurrer was sustained, and the petition dismissed; to which judgment, the plaintiff excepted. The circuit court affirmed the judgment of the court of common pleas, and it is sought by this proceeding in error, to reverse the judgments below.

      Follett & Kelley, for plaintiff in error.
    The operation of the act is confined to villages, in‘counties iu which there is a city of the first grade of the first class, which have not alreadjr constructed sidewalks under the provisions of the sections of the statute named. This classification, w pretended classification, limits the operation of the statute to a portion of the villages situated in counties in which at the time of the passage of the act was situated a city of the first grade of the first class.
    All the villages in counties in which there was a city of the first grade of-the first class, which had, at the time the act took effect, constructed any sidewalk or sidewalks under the provisions of sections 2334#, 2334-¿ and 2334c, are excluded from its operation. While the act does not in terms exclude from its operation villages which might, after the passage of the act, construct sidewalks in pursuance of the provisions of the sections of the statute referred to, and such villages might proceed, under the provisions of said sections, or under the provisions of the statute under consideration, those that had sq constructed sidewalks, could not proceed or claim the benefit of the statute in controversy.
    We confess that we are unable to determine with reasonable certainty what classification of municipal corporations is permissible under the provisions of our constitution, as interpreted b}' the courts of this state; but if the classification attempted in this act is within the limits of the provisions of the constitution of this state, it seems to us that nothing can determine constitutional limitation, but the pleasure of the legislature. Upon a "subject matter of such general importance and universal application as the construction of sidewalks in villages, we have now three classes of legislation, one applicable to villages generally throughout the state, and regardless of whether or not such village or villages are so fortunate or unfortunate as to be located in a county in which there is a city of the first grade of the first class; another applicable to villages situate in counties in which there is a city of the first grade of the first class which, prior to the passage of the act under consideration, contains sidewalks which had been constructed under the provisions of sections 2334#, 2334¡5 and 2334c; and yet another coming within the provisions of the act under consideration, applicable to villages .situate in counties in which there is a citj- of the first grade of the first class in which no sidewalks have been constructed under the provisions of the sections named.
    These acts purport to be laws of a general nature having a uniform operation throughout the state; each relates to a subject matter common to all villages within the state; they differ essentially in their provisions and operations, and yet it is claimed that all are constitutional.
    The act under consideration by its terms cannot apply to villages in any county which does not now contain a city of the first grade of the first class, or which may contain a city which shall hereafter become a city of the first grade of the first class.
    In other words, the language excludes any possible interpretation that would make it applicable to any condition of affairs other than such as existed at the time of the passage of the act, and no future exigency or subsequent change in the statutes existing when the act passed can be made to apply. Wieman v. Wilkensburg, and East Liberty Passenger R. R. Co., 19 Am. and Eng., Corp. Cas., 293; See also in Re Raun Street, 32 Am. a.nd Eng. Corp. Cas., 316; Atlantic City Water Works Company v. Co7isumers' Water Company, 24 Am. and Eng. Corp. Cas., 629.

      J. H. Bromwell, solicitor of the village of Wyoming, for defendant in error.
    This court need not be cited to the numerous cases which have arisen in this state within the past few years involving a construction of sec. 26, art. II, of the constitution, nor be reminded of the broad ground upon which it has stood as to the power of the legislature to classify cities and villages for the operation of laws of a general nature, which by means of this classification became practically limited in their operation.
    Nor has this court placed any limit to the judgment of the legislature as to the basis of classification. Falke ex parte, 42 Ohio St., 644; State ex rel. v. Hawkins, 44 Ohio St. 110; State ex rel. v. Hudson, 44 Ohio St., 139; McGillv. Sta,te, 34 Ohio St., 228: State v. Powers, 38 Ohio St., 54.

      While the classification of cities and villages on the basis of population has been the one most frequently used (as a matter of convenience only) for practically limiting the operation of laws of a general nature, this court has held that this is not the sole and exclusive manner of classifying-authorized under the constitution. Oberlin Case, 41 Ohio St., 480; Heck Case, 44 Ohio St., 536; Turnpike Case, 37 Ohio St., 481; 30 la. 232; 94 U. S. 155; McGill Case, 34 Ohio St., 222; State v. Hammer, 42 N. J. R. 435-440; Nichols v. Walters, 37 Minn., 272; Campbells’ Appeal, Supreme Court of Penn., 7 Rawyer’s Ann. Rep., 193; Dantz v. Cleveland (N. J. Court of Appeals), 7 R. Ann. Rep., 431; Van Riper v. Parsons, 40 N. J. R. 123; McAunich v. R. R. Co., 20 la., 343; C.\B. & Q. R. R. Co., v. Cutís, 94 U. S., 95; 1 CoolejRs Const. Rim. (2d ed) 390; State v. Hunter, 38 Kan., 578; Darrow v. People, 8 Col., 418.
   DickmAN, J.

The act of the general assembly under which the village of Wyoming claims the authority and right to construct sidewalks as set forth in the original petition, was passed April 16, 1891, and reads as follows:

“ Section 1. Be it enacted, by the General Assembly of the State of Ohio: That the following section be enacted as supplementary to section 2328, of the Revised Statutes, with sectional numbering as herein provided:
Sec. 2328a. In any village in any county containing a city of the first grade of the first class in which no sidewalks have alreadj' been constructed under the provisions of sections 2334a, 2334b and 2334c, the council of such village ma3r construct sidewalks wherever such sidewalks have not been already laid, and assess the costs and expense of such sidewalks upon the abutting lots and lands in the corporation, according to the front foot of the property bounding and abutting upon the improvement, and the assessment shall be a lien upon said abutting lots and lands and ma3^ be made payable in one or more installments, and at such times as council may prescribe; and council may issue bonds in anticipation of the collection of such assessment for the cost and expense of the improvement, together with the cost of issuing the bonds and the interest thereon, which bonds shall correspond in amount and time of payment with such annual installments of the assessments levied, and bear a rate of interest not exceeding six per cent, per annum, payable se'mi-annually.”

It is contended in behalf of the plaintiff in error, that the above recited act is in conflict with section 26, article II of the constitution, which provides that, “All laws, of a general nature, shall have a uniform operation throughout the state.” The enactment is, we think, a law of a general nature, within the meaning of the constitution. Its subject matter is of a character that interests and concerns the inhabitants of every village in the state, embracing, as it does, the construction, improvement and repair of sidewalks, streets, avenues, or highways in or leading out of such villages. Kelley v. The State of Ohio, 6 Ohio St., 269.

The act being of a general nature, the question arises, has the general assembly created by the act, such a classification of villages, as conforms to the constitutional provision, that laws of a general nature shall operate uniformly throughout the state? In our judgement, the villages designated in the act as authorized to construct sidewalks as. therein provided, do not together constitute such a classification as will meet the requirement of the constitution. It is a fact well recognized, that legislation may often become necessary for certain cities and villages, which would be entirely unnecessary and inappropriate for other cities and villages throughout the state. It becomes material, therefore, to the public welfare, in view of the constitutional provision requiring uniformity in the operation of all laws of a general nature, that there should be a classification of municipal corporations, but, based upon incidents and characteristics that mark the members of the class as peculiarly demanding exclusive legislation.

It has been said that, “the mode and extent of classification is left to the conscience of the legislature — its sense of right and public necessity.” But it is now settled beyond controversy, that the constitutional provision above referred to, is mandatory, and that a failure on the part of the legislature to observe it will be fatal to the validity of a statute. Falk, ex parte, 42 Ohio St. 638, 640. Whether or not the classification is authorized by the constitution, is for the courts to determine. The people in their wisdom, by prescribing in the constitution a fixed rule of uniformity for the operation of laws of a general nature, have thereby imposed a limitation upon special legislation, and such limitation cannot be broken down or overstepped under the guise of classification. In affirming the principle that classification cannot be sanctioned as a pretext for evading the limitation upon special legislation, it was said by Sterritt, J., in Ajar’s Appeal, 122 Pa. St. 266, 284, in language pertinent to this case: “Whether, in any given case, the legislature has transcended its power and passed a law in conflict with that limitation is essentially a question of law and must necessarily be decided by the courts. To warrant the conclusion that the people, in ordaining such limitations, intended to invest their law-makers with judicial power and thus make them final arbiters of the validity of their own acts, would require the clearest and most emphatic language to that effect. No such intention is expressed in the constitution, and none can be inferred from any of its provisions. That those limitations were designed to establish • a fixed and permanent rule cannot be doubted; but, if the ultimate application of that rule were to rest solely in the judgment of the body on which it was intended to operate, nothing could be more flexible.”

The most obvious principle of classification is that of population, and upon that basis cities and villages have been classified; and legislation, for the construction and improvement of sidewalks, may be and has been adapted to the different classes, into which the municipal corporations of the state have been thus classified by the Revised Statutes. But by sections 2334a, 2334¿, and 2334¿ of the Revised Statutes, a new principle of classification was adopted, having no regard to the population of the villages, but classifying them upon purely local position. By section 2334a, it is provided, that the council of incorporated villages situate in counties containing cities of the first grade of the first class shall, upon the petition of the owners of two-thirds of the front feet of lots abutting upon any streets or portion of streets, between designated points, of such village, provide by ordinance for the construction and improvement of sidewalks along the streets or portion of streets designated between given points, of such material and width as the petition shall designate. And it is further provided, that one-half of the cost of the sidewalk or walks, shall be defrayed by the village, and the other half by the property owners upon such streets or portion of streets between designated points.

Villages situated in counties containing large and populous cities, and which are or may become contiguous to such cities, would naturally need legislation very different from that required by villages otherwise situated. Their particular location — thereby calling for the maintenance of an adequate police force, for protection against fire/'for water supply, for paving, grading, curbing and lighting of streets, and for other municipal improvements — would furnish reasonable grounds for placing villages so situated, in the same class, for purposes of legislation.

But the case at bar presents to us a new and unique classification of villages, founded on an incident or characteristic, arbitrary and restrictive, unreasonable and illusory.

The villages authorized to construct sidewalks under the act of April 16,1891, are grouped in a new class, not on the principle of population; nor by reason of their situs in counties containing cities of the first grade of the first class; but, because being situate in counties containing cities of that grade and class, they have failed to construct sidewalks in accordance with certain sections of the Revised Statutes, designed for all other villages similarly located. No village that had constructed sidewalks under the provisions of sections 2834 a, b, and c, could proceed or claim the benefit of the act in controvers3^; but, onljr those that had elected to remain in a state of inactivity, or had refused to avail themselves of the authoritjr to construct sidewalks, granted to other villages with which the}- had been classified.

Why certain villages in counties containing, or that might, in the future, contain cities of the first grade of the first class, had not deemed it expedient, and omitted to construct sidewalks in accordance with the sections of the statute above referred to, may be left to conjecture. Under section 2384a, it is necessary that-the owners of twó-thirds of the front feet of lots abutting upon any streets of the village, shall petition for the construction and improvement of sidewalks; and one-half of the cost of the sidewalks is to be defrayed by the village, and the other half by the property owners upon the streets. It is manifest, that if the owners of two-thirds of the frontage see fit to petition for sidewalks, they may be constructed under the provisions of the three sections of the Revised Statutes above mentioned. If to avoid street assessments, or for other reasons deemed and in fact good and sufficient, the requisite property owners in a few villages belonging to the class described in those sections, cannot be induced to join in a petition for the improvement, such failure to petition, would, we think, be but a slender support for a classification, consisting of those villages, in order to obtain for them exclusive legislation. When thus grouped into a small class, its origin and formation might serve as an apt precedent for selecting a few individuals of that class, having a common though slight relation or affinity, and grouping them into another and still smaller class, by which, classification might be minimized to a point of special legislation, and the constitutional mandate as to the uniform operation. of all laws of a general nature, be entirely ignored.

The requirements for village classification, in view of the enactment of laws which shall have a uniform operation throughout the state, will not be satisfied by adopting any common mark or feature that will serve to classify. It was stated by Beasuy, C. J., in State v. Hammer, 42 N. J. Law, 435, 440, that a law may be general in its provisions, and may apply to the whole of a group of objects having characteristics sufficiently manifest and important to make them a class by themselves, and yet, the marks of distinction on which the classification is founded may be such, that the law may be in contravention of a constitutional provision prohibiting the enactment of special laws which regulate the internal affairs of towns and cities. If all that is requisite for the purpose of legislation is to designate villages b3' some quality, no matter what it may be, which will so distinguish them as to mark them as a distinct class, the constitutional restriction in regard to the uniform operation of laws of a general nature, would be of no avail, as there are few objects that cannot be arbitrarily associated. The objects grouped for classification should be distinguished by characteristics sufficiently marked and important to make them a class by themselves. Where the general assembly, by appropriate legislation, has authorized certain villages within a limited .class, to construct and improve sidewalks within their limits, the fact that some of the villages do not take advantage of the legislative provisions, will not, we think, constitute an appropriate and reasonable basis for their separate classification. The rule is forcibly stated in the opinion of the court in Nichols v. Walter, 37 Minn. 264, 272; “the true practical limitation of the legislative power to classify is that the classification shall be upon some apparent natural reason — some reason suggested by necessity, by such a difference in the situation and circumstances of the subjects placed in different classes as suggests the necessity or propriety of different legislation with respect to them.” “The marks of distinction,’’ said the chief justice, in State v. Hammer, supra, “on which the classification is founded, must be such, in the nature of things, as will, in some reasonable degree, at least, account for or justif3'' the restriction of the legislation.”

It was said in Bronson v. Oberlin, 41 Ohio St., 476, that, “the classification must be just and reasonable, and not arbitrary.” When, therefore, in incorporated villages situate in counties containing cities of the first grade of the first class, and grouped in the same village-class for the purpose of constructing sidewalks, only one-half of the cost of the improvement is charged to the abutting propert3’ owners, it may well be asked, why a new classification should be made by selecting a portion of such villages, and subjecting the abutting property owners to the payment of the entire cost of the improvement. It would hardly be a justification for imposing upon such property owners what might seem a penalty, because the owners of two-thirds of the front feet of the abutting lots had failed to join in a petition for the improvement.

There are numerous adjudications illustrative of characteristics that would properly serve as a basis for classifying cities and villages when subjects of general legislation. But we deem it unnecessary to comment upon them, or cite them.

The act of the general assembly under consideration, though of a general nature, is restrictive, and not uniform in its operation throughout the state, within the meaning of the constitution. It rests upon a basis of classification that should not be adopted by the legislature, in its endeavor to give to all legislation of a general character that uniform operation which the constitution' requires.

In our opinion, the. court of common pleas erred in sustaining the demurrer to the petition, and the circuit court erred in affirming the judgment of the court of common pleas, and the judgments below should be reversed.

Judgment accordingly.


author: Spear, C. J.

text:
    Rose v. King.

      Fire escapes — When must be provided by owner of building — Tenement house— What is — Sections 2573 and 2574, Revised Statutes, construed — Negligence of owner of buildings — Damages.
    1. Section 2573, Revised Statutes, as enacted April 19, 1883, which makes it the duty of any owner of any tenement house of more than two stories high, to provide a. convenient exit from the different upper stories which shall he easily accessible in case of fire, is intended, as a primary object, to secure means for safe egress by tenants occupying the upper stories of such buildings in case of fire, and applies as well to those who occupy the' second story as to occupants of the higher stories.

      2. The duty to provide convenient exits, prescribed by section 2573, is not confined to buildings within municipalities, but is of general application.
    ;>. A tenant in a tenement house, situate within a city or village, who, without fault on his part, receives injury because of the neglect of the owner to comply with the requirements of section 2573, may maintain against such owner, a civil action for damages, and his right of recovery will not be affected by the fact that the mayor has not given to the owner the notice required by-section 2574.
    4. A four-story building, occupied by three families living in separate apartments on the second floor, and by two families living in separate apartments on the third floor, numbering in all sixteen persons, all tenants of one owner, is a “tenement house”’ within the meaning of section 2573.
    (Decided March 2, 1892.)
    Error to the Circuit Court of Cuyahoga county.
    Plaintiff commenced his action in the court of common pleas, June 27, 1885, by filing a petition, alleging, in substance, that the defendant was, and, for a long time before the injuries complained of, had been the owner and in possession of a building situate on Ontario street, in the city of Cleveland, four stories in height, the first floor of which was used for stores, and the three upper stories were used as and were a tenement house. It became and was the duty of defendant to provide a convenient exit or fire escape from the upper stories, which should be easily accessible in case of fire, yet defendant did not perform said duty, but wholly neglected the same. Plaintiff became a tenant in said tenement house April 1, 1885, at that date renting of defendant three rooms in the rear of said building, on the second story, and was such tenant on the night of the 15th of May, 1885, at which time a fire started in the lower or ground floor of said building, which quickly communicated to the upper stories. In endeavoring to escape from said building plaintiff was forced to jump from one of the rear windows of the second story into an alley which ran along the rear of the building, and in so doing suffered severe and permanent bodily injuries. In everything done bjr plaintiff he exercised due care, and received said injuries wholly by reason of negligence and breach of duty of defendant, etc.
    By his answer defendant admitted that he was the owner of the building; that the plaintiff was a tenant as stated; that the fire occurred at the date named; that during its progress plaintiff jumped out of a second story window and was injured, and denied every other allegation of the petition.
    At the trial, numerous exceptions were taken by defendant to the charge as given and to refusals to charge. A' verdict was returned for the plaintiff. Judgment was rendered thereon, which was affirmed by the circuit court.
    Henderson, Kline & Tolies, for plaintiff in error.
    I. Mr. King being a tenant of the second story was not a person for whose protection, or in whose favor, any duty prescribed by the statute was created. It will be noticed that section 2573 requires exits or fire escapes only in buildings more than two stories high, and that the owner of a building two stories high is not required to furnish any means of escape from the second story, no matter what use is made of it, or what number of people may lodge there. In buildings of a greater height these exits are to be provided from the different upper stories. It seems to us, therefore, that the “(upper stories” intended were the stories above the second one, and that the legislature did not think the danger incident to an escape from the second floor sufficient to require any interference on its part; for there seems to be no reason why a tenant in the second story of a two story building should require any less protection than a tenánt at the same height and in the second story of a three story building.. In other words that the dtdy created by the statute was created for the benefit of those dwelling above the second story; the legislature believing that dwellers in that story might properly be left to their rights at common law. The reading of the whole section together seems to us to bear out this construction, which seems also to be in accordance with the general understanding of the statutes and the requirement of safety.
    That the legislature had in view the necessity for protection of the higher stories, only, seems clear from the more explicit language used in subsequent enactments upon the same subject. Section 33, vol. 84, Ohio Raw- 154; section 32, vol.. 85, Ohio Raw, 299.
    These sections, it seems to us, definitely show the legislative intention to be simply to provide means for upper Story tenants coming down as far as the second story; and that second story tenants are not within the protection of the act. If this be true the petition which avers Mr. King to be a tenant in the second story, and his evidence to the like effect, placed him outside of the protection of the statute, and there could be no recovery for his injury.
    II. It seems to us that section 2574 clearly defines the circumstances under which the owner is liable to individual tenants for a failure to preform the statutory duty, and, within the meaning of the rule, prescribed the remedy both for the public and the individual; and, if that be so, that no liability rests upon the owner. The petition did not aver, nor did the evidence tend to show, that the required notice had ever been given this owner.
    In the case at bar no right of action independent of the statute existed. The statute provides that under certain circumstances the owner is liable to penalty and also to damages for its violation. The language is “such owner”— that is, the owner just described, as one who has not obeyed the notice given him may “also” — that is, in addition to the penalty, be liable in damages. Ranguage could not, it seems to us, be more specific in describing the owner liable to damages as the owner liable to the public penalty, and as an owner failing to comply with the notice of a public official. The use of the words “such owner” and “also” fixes definitely the meaning; and when the statute expressly defines, what owner, or under what circumstances an owner is liable, it seems clear to us that no other owner can be liable, nor can an owner under any other circumstances be held to damages.
    In modern language, and as applied to the point under consideration, we take this phrase to mean simply that when-a statute creating a new right declares that under certain defined circumstances an individual may have a remedy for its denial, such declaration excludes- the right to a remedy under any other circumstances. So when the statute under consideration declares expressly that an owner who fails to comply with the notice given him by a public official shall be liable to damages, such declaration excludes the idea of liability under any other circumstances. Grants. Slater Co., 14 R. I., 480; Schott v. Harvey, 106 Penn., 321; Cooley on Torts, 650; Addison on Torts, par. 59; Commrs. v. Bank, 32 Ohio St., 194.
    III. We believe the evidence did not tend to show that the building in question was a tenement house within the meaning of the statute.
    The expression “tenement house” has not found its way into the dictionaries as a compound word with a fixed meaning attached thereto; but to our minds it imports something more than was proven here, something more than a business block in which certain portions or rooms may at times be let for lodging purposes when not in use for other purposes. It' imports, we think, a building designed, intended or principally used for homes for families, where they live, in the broader meaning of the word, and .take their meals as distinct from a mere rooming or lodging place.
    The legislative idea of the meaning of the phrase is made clear in 84 Ohio Law, 145.
    Of course this later act does not directly govern the question, but we cite it to show that the proof in this case fell short of the legislative .idea of a tenement house

      White, Johnson & Me Cas ¿in, for defendant in error.
    I. We believe it to be the law. that whenever a statute creates a duty for the benefit or safety of a particular person or class of persons, then if one of those persons for whose benefit the duty is created is injured by a breach of the duty, under circumstances which, otherwise, would give rise to a cause of action, he may recover against the person whose breach of duty has occasioned the injury. This rule is put in different ways^by different writers. 1 Addison on Torts, 66; Wharton on Negligence, section 443; 1 Shearman & Redfield on Negligence, § 13; 1 Thompson on Negligence, 558, § 2; 2 Thompson on Negligence, 904, §,27; Cooley on Torts 653-8; Couch v, Steel, 3 Ell. & Bl., 402,410, 4Í1; ■Jetter v. Railroad Co. 2 Ább. App, Dec. 458, 464; S. C. 2 Keyes, 154; Caswell v. Worth, 5 Ell. & .Bl. 849, 855; Coe v, Platt, 6 Excheq., 752; Hayes v. Railroad Co., Ill U. S. 228; Messenger v. Pate, 42 la., 444; Siemens v. Bisen, 54 Cal., 418, 420; Broom Eeg. Max., 194, 195; Gray v. Pullen, 5 B..& S. 970; Moak’s Underhill on Torts, 18,19.
    Our friends seem to concede that under the authorities quoted, King would have a right of action under sec. 2573, were it not taken away by sec. 2574, as amended by act, 80 Ohio Daw, 188.
    It will be observed that the provision of section 2573 makes it the duty of the occupant of the building to. provide the exit as soon as the act goes into effect; in other words, it creates a present duty without reference to the action of any officer; but section 2574 provides that there shall be no penalty until the officer has taken action.
    It seems to us that the duty created by the first section is not taken away or limited bjr the second, but that the two relate to separate subject matters, the one to private action, and the other a proceeding in the name and for the benefit of the public. This opinion is strengthened by looking at the history of the statute. Cooley on Torts, 654; Hover v. Barkhoff, 44 N. Y., 113; Hinney v. . Sprague, 11 R. I., 456; Comyn’s Digest, Action upon the Statute (F.); Willy v. .Mulledy, 78 N. Y., 310, 313; Maker v. Slater Mill & Power Co., 15 R.I., 112; Parker v. Bernard., 135 Mass., 116.
    We conclude on the whole, therefore, that neither the penalty nor the saving clause in section 2574 of the right of civil action, interfere with the plaintiff’s right to maintain this suit.
    II. Our friends next insist that Mr. King being a tenant living in the second story, the owner of the building owed him no duty as to exits, in case of fire, arid base this upon the restriction of the application of the.statute to buildings of more than two stories ip_ height.. A, preference,to .the history of the act seems to us,.again,.to,do ■ away with' the argument of our friends. The original act, (74 Ohio Raw, 176) provided “that it shall be the duty of all owners or keepers of inns or public houses, where travelers or boarders are lodged, to provide suitable and efficient ladders or other safe fire escapes from the different upper stories of .such inn or house, to be easily accessible to each lodger in case of fire.” Plainly this applied to the second story. When this statute was amended by the act of April 19, 1883 (80 Ohio Raw, 188), it was amended by adding tothp structures enibraqed'in the statute the words “factory, workshop, tenement house,” aiid by inserting the limitation that the structure should be more than two stories high, but making the thing to be provided by the owner the same as before, to-wit: “A convenient exit from the different upper stories of said building, which shall be easily accessible in case of .fire.” It seems to us clear that thus far exactly the same things must be provided under the act of 1883 as under the act of 1887; that, the identical words used in the two statutes “from the different upper stories of said” structure, meant in £>oth laws exactly the same thing. If the act of 1887-required.a safe exit from the second story, “easily accessible in case of fire,” so did the act of 1883, and we submit that the limitation that the latter shall only apply to such buildings as are more than two stories high, is a restriction, on the buildings-to which the statute applies, and not a restriction upon the fire escapes or exits to be provided. This opinion seems confirmed by the latter part of section 2573, as,amended in 1883, which, in addition to requiring “a convenient exit from the different upper stories of said building, which shall be easily accessible in case of fire,” goes on to make a new requirement in case of inns a special provision by way of ropes or life-lines for the sleeping rooms in the stories above the second story. We cannot think that this statute was intended to. diminish the obligation created by the act of 1887, but.we contend that it was rather to increase the beneficial provisions of the earlier act.

      III. What is a tenement house? 2 Abbott’s Eaw Dictionary, 548; Mus grave v. Sherwood, 53 How., Pr. R. 811; Anderson’s Eaw Dictionary, 1020; Young v. Boston, 104 Mass., :95; Commonwealth v. Hersey, 144 Mass., 297; Attorney General v. Mutual Traveler's Association, E- R., 10 Exch. 305; Insurance Co v. Clayton, E. R. 8 Q. B. Div., 421, 425.
   Spear, C. J.

A determination of the questions raised upon the record by the exceptions of the defendant below, makes it necessary -to consider sections 2573 and 2574, Revised Statutes, relating to the providing of exits from buildings. As enacted April 19, 1883, these sections are as follows.

“SECTION 2573. It shall be the duty of any owner or agerit for' owner of any factory, workshop, tenement house, inn, or public house, if such factory, workshop, tenement house, inn, or public house be more than two stories high, to provide a convenient exit from the different upper stories ■of said building, which shall be easily accessible in case of fire, and any owner or person having control of any such inn or public house where travelers or boarders are lodged in any story above the second story of the building, shall .also provide a good rope or other life-line for each sleeping-room for guests in such stories.

“Section 2574. It shall be the duty of the mayor of each city or village to require the owner or agent for owner of .any factory, workshop, tenement house, or inn or public house, within the meaning of the next preceding section, to comply with the requirements of said section within sixty days from the serving of a notice by the mayor so to do, unless such owner or agent for owner shall have previously complied with the requirements of said preceding section, and if, any such owner or agent of owner neglects or refuses to comply with the requirements of the next preceeding section, within the time specified in said notice, he shall forfeit not less than fifty or more than three hundred dollars for .■each and every month he so fails to comply therewith, the amounts so forfeited to be recovered in the name of and for the use of such city or village iu an action in the police court or other competent tribunal; such owner or agent foi owner may also be held for- civil damages to the party injured.”

It is contended by plaintiff in error: 1. That the "defendant in error, being a tenant of the second story, was not a person for whose protection, or in whose favor any duty prescribed by the statute was created. 2. That no-civil liability could attach to the owner - in this case under the statute, because it was not averred or proven that any notice had been given by the mayor as provided in section 2574. And 3. That the evidence did not tend to show that the building in question was a tenement house.

Are the benefits of this act confined to tenants occupying stories above the second story?.

The statute applies to all buildings included within the description which are more than two stories high. It requires the owners to provide a convenient exit from the different upper stories. The term “upper” implies a story above the ground floor. This is the dictionary meaning, as will be seen by reference to the Century Dictionary, and it is the natural meaning. Unless qualified by other portions • of the act, it would follow from this language that the owner is required to provide exit as well for the accommo-'-dation of those occupying the second story as for those in the higher stories. It is insisted that it is so qualified by the fact that the act can apply to no building except it be of ' more than two stories, and hence it follows that the legislature did not regard the danger incident to an escape from the second floor sufficient to require any interference on its part.

This proposition would have force if the number of people likely to need means of escape in a building of three or more stories would not be greater than in a two story building. But it must be manifest that the crowding of means of exit adds to the dangers, and that a provision as to - exits which would safely accommodate the occupants of the second story of a two-story building might prove entirely inadequate where the number was increased by the occupants . of the stories above. Then, too; it is of significance that the ongiiial? act,'passed'May 5, 1877 (74 Ohio T. 176), “to require inn and boarding house keepers to provide suitable and efficient fire escapes,” did not confine the duty to buildings of more than two stories.. The dut3^ attatched to all owners or keepers of inns, etc.,' and the requirement was “to provide suitable and efficient ladders or other safe fire escapes from' the 'different upper stories,” etc. The latter act confines the duty to buildings of more than two stories, but the requirement is, as before, that the exits shall be “from the different upper stories of said building;” and it further requires that keepers of inns and public houses, where travelers or boarders are lodged in any story above the second story, “shall also provide a good rope or other life-line for each sleeping-room for guests in such stories.” Quite'clearly the restriction in the latter act is on the building to which it applies, and not upon the fire escapes or exits to be provided.

It does not follow that the exits for the benefit of occupants of the second, or any, story, in order to be “convenient” and “easily accessible in case of fire,” must necessarily be built to the ground. Manifestly what would be “convenient” as to a first story ten feet in height, might not prove so if the story were eighteen feet in height, and that which would be “convenient” where the way was clear and the ground underneath free from obstructions, would not be so if wires, or other obstacles were below it so as to prevent safe descent, or the space beneath occupied by railings, or area steps, or other things of like nature, dangerous to light upon. What would be proper and “ convenient” would have to be detemined by the circumstances of each case. We think the act was intended for the benefit of the occupants of all upper stories, in two-story, as well as higher buildings.

As to the second proposition it is contended that there can arise civil liability for damage only upon the sanie conditions, which would make the owner liable criminally, because the express provision of section 2574, that the owner who fails for sixty days after notice by the public officer re provide exits or fire escapes shall be liable to the public ..or a penalty, and to the individual by way of civil damages, is an express declaration of the legislative intention as to the circumstances under which an owner shall become liable to the individual as well as to the public, and the legislature having made such declaration is a negation of liability upon the part of the owner, as well to the individual as to the public under any other circumstances.

In support of this claim the principle laid down in Commissioners v. Bank, 32 Ohio St., 194, is invoked, viz: that “Where a statute creates a new offence by prohibiting and making unlawful anything which was lawful before, and provides a specific remedy against such new offence, (not ante-cedently unlawful) by a particular sanction and method of proceeding, that method of proceeding, and none other, must be preserved.” The statute under consideration, and concerning which the above rule was announced, made it a crime for a county treasurer, having the safe keeping of public moneys, to “ convert the same to the use of himself or any other person or party, or to invest or loan the same;” or if any person shall advise, aid, or in any manner participate in such act, he, as well as the public officer, shall be held in law to be guilty of embezzlement of the moneys so loaned, invested or converted; and upon prosecution they shall be imprisoned, etc., and be fined equal to double the amount of the money or property so embezzled, which fine shall operate as a judgment at law, etc., for the use only of the party or parties whose moneys o.r other property has been so embezzled. The suit was a civil action against the bank to which the treasurer had loaned the public money, and-the court held that the statutory remedy of fine, etc., which was for the use only of the owner of the money, was exclusive, and the civil action could not therefore be maintained.

There are wide differences between the statute last referred to and the one under consideration. The embezzlement statute not only created an entirely new offence, making that criminal which before was not so,, but it provided also, that the fine should be for the benefit only of the person injured. In giving construction to such a law, a court might well bold that, all civil remedies depend upon a conviction of the criminal offence created. The fine was to inure' to the injured party. It was part and parcel of the punishment. The remedy grew out of the criminal act, so to speak, and its enforcement was wholly dependent upon the proof of facts which established the criminal liability of the defendant, and it would follow as a corollary that the injured party could not have a remedy outside the special statute. Not so with the statute governing this case. The fine is wholly for the benefit of the municipality; the civil damages wholly for the benefit of the person injured. Nor was civil liability on the part of the owner first created by the language in section 2574— “suc'h owner or agent for owner may also be held for civil damages to the' party injured. ” Such liability followed as a consequence of the terms of the original act in which the language above quoted does not appear, but which enjoined the duty, and resulted from the principle, which we supposed to be of universal application, that where a statute imposes a duty but gives no penalty to the party aggrieved by its non-performance, that party is entitled, on common law principles, to maintain an action for his damages. The rule is stated more at length in Wharton on Negligence, section 448: “Where a statute requires an act to be done or abstained from by one person for the benefit of another, then an action lies in the latter’s favor against the former for neglect in such an act or abstinence, even though the statute gives no special remedy. In such cases applies the maxim Ubi jus ibi remedium. Even the imposition of a penalty by the statute does not oust the remedy by indictment, nor, a fortiori, by suit for negligence, unless the penalty be given to the party injured in satisfaction for injury.” It is stated in somewhat more guarded language, by Judge Cooley in his work on Torts, thus: “Where the statute imposes a new duty where none existed before,' and gives a specific remedy for its violation, the presumption is that this remedy was meant to be exclusive, and the party complaining of a breach is confined to it. So, if performance of the duty is enjoined under penalty, a recovery of this penalty is in general the only remedy, even when it is not made payable to the party injured; but the rule is not without its exceptions; for if- a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected. And if the duty imposed is obviously meant to be a duty to the public and also to individuals, and the penalty is made payable to the state, or to an informer, the right of an individuál injured to maintain an action on the case for a breach of the duty owing to him will be unquestionable.” For furthnr application of the principle, see Couch v. Steel, 77 Eng. C. E. Rep. 402; Jetter v. Railroad, 2 Abb. App. (N. Y.) 458; Messenger v. Pate 42 Ia. 444; Siemers v. Eisen, 54 Cal. 418; Willis v. Mulledy, 78 N. Y. 310; Parker v. Barnard, 135 Mass. 116.

It is insisted that these sections apply to the designated buildings located within' 'municipal corporations, from which it follows that they are intended primarily as police regulations, and only incidentally, for the benefit of particular tenants, and that this is shown by their location in the Revised Statutes, being under the general heading “Municipal Corporations.” We think it a sufficient answer to this claim that the first act, the title of which has been already quoted, was not passed as an amendment to, or part of, the municipal code, though such a code had been a distinct part of the statute for eight years, but was enacted as an independent statute. By its terms, as already stated, it applied to all owners, etc. True, the second and third sections named certain officers whose duty it was to enforce the act in municipalities. But this did not absolve those coming within its description, though they lived outside of municipalities, from obeying its requirements. The fine was not for the purpose of raising revenue, but to enforce compliance, and was an incident to the main features of the act, rather than a primary object. Had the duty imposed upon owners been such as tended to prevent the danger of communicating fire from one building to another, or to the liability of a building to catch fire and thus endanger adjpining structures, there would be ground for saying that the legislation was in the nature of a police regulation. But no feature of this kind appears.

Subsequent legislation is in the same line. The act of April 4, 1884, supplementing section 2573 (81 Ohio Raws,. 106), is entitled an act “for the better protection of the health, comfort, and safety of persons employed in shops and factories.” It creates the office of inspector of shops and factories, and, among other duties, imposes that of examining as to the means of exit in case of fire or other disaster, and prescribes a penalty for a failure to comply with his instructions. We think that the language of the act in question, interpreted in the light of the history of the entire legislation upon the subject, leads to the inevitable conclusion that the act was primarily for the benefit and protection of dwellers in the buildings déscribéd, wh'erever located; it is, as to them, remedial in its nature, and should receive such construction as will avoid the. mischief and advance the remedy. The orignal act, it is true, did not include tenement houses, by name, but that can make no-difference when the inquiry is as to the scope of the act in other respects. No reason has been suggested, and, it is submitted, none exists, for protecting persons in workshops, or factories, or public houses, situated within municipalities, which does not apply as well to those without. That the class within is larger in number than the class without, certainly does not afford such reason. Nor can the fact of location in order in the Revised Statutes negative the presumption to be drawn from the language of the act and its title. Arrangement of the statutes under their respective heads, was primarily the work of the codifiers to conserve convenience merely, and its adoption by the legislature afterwards, could not be accepted as an intent to defeat a purpose manifested in the law at the time o.f its enactment. We take the sections as we find them. Their manifest purpose is for the protection of life and limb, and they should not be shorn, by construction, of their remedial features because a penalty, payable only to the municipalitj-, is attached to violation after' notice. To make the liability of the negligent owner to the injured, though innocent tenant, depend irpon the action, or non-action, of a municipal officer, over whom the tenant could have no control, and possibly no influence, would be to take from the statute one of its most important and beneficial features, and to greatly retard the humane purpose intended.

Was the building of plaintiff in error one of those included within the terms of the statute? In other words, does the testimony "tend to show that it was a tenement house?

The word “tenement” in-Abbott’s Raw Dictionary, is defined thus: “In modern times, and very frequently in public usage, it denotes simply a house; e. g. in the phrase, ‘ all that messuage or tenement.’ From its apparent analogy to tenancy and tenant, it is popularly used for a building, or distinct portion of a building; particularly adapted to be let for short periods and at moderate rent.” Anderson’s Raw Dictionary gives it: “In modern use, a room let in a house, or such part of a house as is separately occupied by a single family or person, in contradistinction to the whole house.” In Young v. Boston, 104 Mass., 95, it is held the word “tenement” in the Massachusetts Statutes, “is obviously used to describe such part of the house as is separately occupied by a single family, in contradistinction from the whole house.” A “tenement house,” as defined in the Century Dictionary, is “a house or block of buildings divided into dwellings occupied by separate families.” ' The Pennsylvania Statute defines tenement houses as “ every tenement house or building in which rooms or floors are usually let to lodgers or families.”

In the light of these citations, we see no reason to question the sufficiency of the definition of the word “tenement house,” contended for by counsel for defendant in error, tó-wit: “ A building, the different rooms or parts of which are let for residence purposes by the possessor, to others, as distinct tenements, so that each tenent, as to the room or ' rooms occupied by him would sustain to the common landlord the same relation that the-tenent occupying- a-whole house, would to his landlord.”

Now, the evidence tended to show that the building was a four story building; that on the second floor, in separate suites of rooms, lived three families composed of ten persons ; on the third floor, in separate suites of rooms, two families numbering six persons, in all five families, composed of sixteen persons. Witnesses testified concerning their bedrooms, and kitchens, and to the fact of living in their respective apartments, and of occupying them as tenents. What more could be required to show that the building was-a “tenement house,” we are at a loss to conjecture.

Exceptions were taken to the admission of evidence. Also, to the charge as given upon, points not hereinbefore noticed, and to refusals to charge. The questions thus raised do not appear to be of such general interest .as to make it worth while to lengthen this report by a statement and a discussion of .them. Upon the whole case the trial seems to have been fairly conducted. The-charge-was as--favorable to the complaining party, in the respects above alluded to, as he could reasonably ask, and the requests not given, were,, as we think, properly refused.

Judgment affirmed.


author: By the Court.

text:
    State v. Inskeep.

      Assault and battery— What is a sufficient indictment for.

    (Decided March 8, 1892.)
    Bite of EXCEPTIONS, to the rulings of the Court of Common Pleas of Brown county, by the prosecuting attorney.
    The defendant was indicted for an assault and battery by the grand jurors of the county. The indictment charged “that John Inskeep * * * on the eighth day of November, 1890, at the county aforesaid, unlawfully did make an assault in and upon one John W. Moler, and him, the said John W. Moler, did then and there strike and wound,” with the usual conclusion. A motion to quash the indictment was sustained on the ground that it “ contains but one count and two separate and distinct offences.” The prosecuting attorney took a bill of exceptions, and asks to have the ruling reversed.-

      David Tarbell, prosecuting attorney, for the state.

      Young & McBeth, for the defendant.
   By the Court.

The common pleas erred in sustaining the motion. The indictment is not bad for duplicity, is in proper form, and the motion should have been overruled.

Exception sustained.


text:
    State ex rel. v. Schwab.

      Municipal Corporations — Council-yneh-at-llarge—Constitutional law..
    (Decided March 8, 1892.)
    Quo Warrento.

      W. C. Shepherd, for plaintiff.

      Thomas Millikin and M. O. Burns, for defendant.
   By the Court.

The act of March 25,1891, entitled “An act to supplement sections sixteen hundred and seventy-two, sixteen hundred and seventy-five, and sixteen hundred and seventy-six, of the Revised Statutes,” (88 Ohio Raws, 197), which provides, among other things, that in cities of the third grade of the second class, having a population at the eleventh federal census of seventeen thousand five hundred and sixty-five, one member of the council at large shall be elected annually, who shall be president of the council and appoint all standing committees, applies only to the city of Hamilton, and is in conflict with section one of article thirteen of the constitution of this state, and void.

Judgment of ouster.