author: Grew, J.

text:
    The City of Cleveland v. The Clements Bros. Construction Co.

      Wight-hour labor law — Service of worltmen employed upon worle for state or subdivision thereof — Limited to eight hours— Act of April !8, 1900, invalid — In conflict with sections 1 and 19 of article 1 of constitution — Restriction of personal liberty — Act not proper exercise of police power — Law of contracts — Municipal corporations — Constitutional law.

    1. The act of April 16, 1900, 94 Ohio Laws, 357, entitled: "An act to provide for limiting the hpurs of daily service of laborers, workmen and mechanics employed upon public work, or of work done for the state of Ohio, or any political subdivision thereof, providing for the insertion of certain stipulations in contracts of public works; imposing penalties for violations of the provisions of this act, and providing for the enforcement thereof,” is in conflict with sections 1 and 19 -of article 1 of the constitution of Ohio; because it violates and abridges the right of parties to contract as to the number of hours labor that shall constitute a day’s work, and invades and violates the right, both of liberty and property, in that it denies to municipalities and to contractors and subcontractors the right to agree with their employes upon the terms and conditions of their contracts. Said act is therefore unconstitutional and void.
    2. Said act is not a valid exercise of the police power, it not appearing that the services and labor to be performed were unlawful or against public policy, or that they were of such character that such limitation and restriction as to the number of hours’ labor that should constitute a day’s work was : necessary to the public welfare

      3. Said act being unconstitutional in an action brought by a contractor against the city to recover an amount due him for labor performed for said city under a contract containing a stipulation as required by said act, that said contractor should not require or permit any of his employes to labor more than eight hours in any one day and providing as penalty for a violation of such stipulation the forfeiture of ten dollars for each employe who should be so required or .permitted to work more than eight hours in any one calendar day, where by way of answer, and as and for its only defense, such city relies upon and pleads its right to withhold and retain from such contractor, by way of forfeiture and as penalty for his breach of such stipulation, an amount equal to the amount claimed by said contractor to be due him on said contract, such answer does not state a sufficient defense and is bad on general demurrer.
    4. Where a statute peremptorily requires certain stipulations or agreements to be inserted in a contract, and the same are, by force of such statute and because of its provisions, inserted by the contracting parties in their contract, the obligatory ' and binding force of such stipulations and agreements so in-serted, depends upon the validity of the statute requiring •their insertion. And where such statute is itself unconstitutional, such stipulations and agreements although incorporated in the contract, are in law, without any obligatory <or binding force upon the parties to said contract.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    This action was originally begun in the common pleas court of Cuyahoga county by the Clements Bros. Construction Co., as plaintiff, v. The City of Cleveland, defendant.
    It was alleged by plaintiff in its petition that the ■city had, on July 31, 1900, entered into a contract with the plaintiff, for the construction of a sewer in “Wellington avenue in said city, and promised to pay the plaintiff for the material furnished and work and labor done by it in the construction of said sewer, as specified in the contract; that the chief engineer of said city was directed to and did make an approximate estimate of the work done and materials furnished under said contract, which estimate amounted to $9,808.72; that said estimate was duly approved by the director of public works and filed with the city auditor; that all of said amount was paid by said city to the plaintiff, except the sum of $320.00; that said city, without valid reason, and contrary to the terms of the contract, retained said sum, and refused to pay the same to the plaintiff; wherefore, the plaintiff prayed judgment for said sum of $320.00, with interest thereon from December 15,1900.
    The city’s answer to the petition admitted the contract, the estimate, that said estimate was duly approved by the director of public works and filed with the city auditor, the payment of all of the amount of said estimate except $320.00, the retention by it of that sum, the plaintiff’s demand, and its refusal to pay.
    It, however, denied that such retention and refusal were contrary to the terms of the contract, and without lawful or valid reason, as alleged in the petition, and averred that it refused to pay the plaintiff said amount by authority of an act passed by the general assembly of the state of Ohio, April 16, 1900, entitled: “An act to provide for limiting the hours of daily service of laborers, workmen and mechanics employed upon public works, or work done for the state of Ohio, •or any political subdivision thereof,” etc.
    Defendant in its answer further averred that in accordance with the provisions of section 2 of said act, a certain stipulation, attached to the answer, and made a part thereof and marked “Exhibit A,” was made a part of the contract between the plaintiff and defendant, and that in violation of the stipulation and of the latv, the plaintiff required or permitted laborers, workmen and mechanics, to work more than eight hours in one calendar day upon the work mentioned in the contract, and that the work so done was not, done by reason of any emergency, or upon any work mentioned in the act and exempted from its operation; that said act and stipulation provided that a. penalty of $10.00 for each day in which any laborer, mechanic or workman labored more than eight hours, should be paid by plaintiff and withheld by defendant; that the plaintiff did require thirty-two laborers; to work more than eight hours on one certain day; that in accordance with the provisions of said act defendant retained $10.00 per day for each violation of the act, amounting to $320.00; wherefore it prayed to-be dismissed.
    ■ To this answer the plaintiff demurred, alleging as grounds of demurrer: 1. That said answer is insufficient in law on its face; 2. That said answer does not state facts sufficient to constitute a defense to plaintiff’s cause of action; 3. That the statute referred to in said answer is unconstitutional.
    This demurrer was overruled by the court of common pleas, and judgment given for the defendant.
    The case was taken to the circuit court on error,, which court reversed the judgment of the common pleas for error in overruling said demurrer.
    The circuit court sustained the demurrer to the answer, and defendant not desiring to plead further, rendered judgment against the City of Cleveland forth e amount prayed for.
    This proceeding is prosecuted to reverse the judgment of the circuit court, and to affirm that of the common pleas.

      Mr. M. W. Beacom and Messrs. Babcock, Payer, Gage & Carey, for plaintiff in error.
    1. It is well settled that municipal corporations are mere political subdivisions of the state, created by it, for convenience and economy in government, and to aid the state in the regulation and administration of local affairs. They can exist only by the authority of the state, whether that authority be expressed in a charter, or in special or general acts under which such corporations are organized. Beach on Pub. Corp., sections 31, 60; Dillon Munic. Corp., sections 54, 57; Ravenna v. Railway Co., 45 Ohio St., 118.
    2. They derive their powers entirely from the state through the acts of its legislature. Such powers are those expressly conferred by the legislature, and those necessarily implied to carry out such as have been granted in terms. Being the mere creatures and instrumentalities of the state for the purpose of government, their powers are only such as the legislative may confer. 15 Am. & Eng. Ency. Law (O. S.), 1039; Bloom v. Xenia, 32 Ohio St., 461.
    The legislative will is supreme, and it may enlarge, abridge or entirely withdraw at its pleasure, the powers which it has granted. Beach on Pub. Corp., sections 538-9; 151 Ill., 663.
    It can impose such restrictions a's it' deems proper. Beach on Pub. Corp., section 542; 17 Wall., 322.
    No principle is better established or more fundamental in its character than that a municipal corporation being organized for political purposes, is constantly subject to the control of the legislature. 30 Md., 436; 44 Md., 67; 20 N. J. Eq., 360; 38 N. J. L., 259.
    3 We do not think it can be doubted that the state itself, as one of two parties to a contract, might agree to and even insist upon, the insertion in such contract of such a stipulation as to labor as the act in question provides for, and as the contract in this case contained. Hence,- it follows logically that municipal corporations, being, as we have seen, mere subdivisions of the state, and deriving their entire powers ' from the state, may be lawfully directed by the legislative will as to what provisions their contracts shall contain, unless such direction be in contravention of the provisions of the state or the United States constitution.
    Individuals may make any contract not prohibited by the terms of the policy of the law; but, unlike them, municipal corporations can only contract .within the limits of expressly granted or necessarily implied powers, and then only in the manner (and under the restrictions) the legislature has prescribed. 15 Am. & Eng. Ency. Law (O. S.), 1080, 1106.
    4. The act in question does not, as was contended in the circuit court, restrict the right of liberty to contract.
    Tbe contracting party (Tbe Clements Bros. Construction Co.) was not compelled to bid; it did so voluntarily, with full knowledge, and when awarded tbe contract executed it voluntarily, knowing all of its provisions, and assumed tbe obligations and conditions imposed by tbe statute. Even if tbe provisions of tbe statute were not actually inserted therein, they would be read into tbe contract as a part of tbe law •of tbe state. People v. Warren, 77 Hun, 120; People ex rel. v. Beck, 10 Misc. Rep., 77.
    It will be admitted that tbe sovereign power of tbe state of Ohio is vested in tbe legislature of tbe state, subject to sucb restrictions as appear in express terms, or by necessary inference, in tbe constitution. It will also be admitted that the various subordinate municipal governments of the state are not in themselves independent and sovereign, but are subdivisions of the general government, created by it, with enumerated powers, and with no powers except such as may be fairly drawn from their charters or creation. Cooley on Const. Lim., 115; Beach on Pub. Corp., sections 60, 63, 70, 78, 92.
    It will not be denied that the state of Ohio has the right, in making its contracts, to stipulate, as one of the conditions in them, that persons shall not be permitted to work more then eight hours in their execution. People ex rel. Rodgers v. Coler, 166 N. Y., 1; People v. Phyfe, 19 L. R. A., 141; In re J. T. Dalton, 61 Kan., 257.

      Messrs. Weed & Miller, and Messrs. Wilcox, Collister, Hogan & Parmely, for defendant in error.
    This statute, we claim, is unconstitutional, first, because it impairs the right to contract, and therefore is in violation of section 1, article 1, of the constitution. Numerous attempts have been made in the last few years, through legislation, to control the contracts which shall be made between employer and employe, and the courts of this state and other states have uniformly held such contracts unconstitutional.
    Among the statutes held unconstitutional for this reason, by the courts of this state, are the following: The statute requiring employers to pay their employes every two weeks. State v. Lake Erie Iron Co., 25 Bull., 101 (affirmed without report, 33 Bull., 6). Statute prohibiting employer from discharging employe because he was a member of a trade union. State v. Bateman, 10 Ohio Dec., 68; 7 N. P., 487. Statute prohibiting employers from paying their employes in script or store orders. Marsh v. Posten, 35 Bull., 327.
    The courts of other states have rendered numerous rulings to the same effect, from which we cite a few: Low v. Reese Printing Co., 41 Neb., 127; Goodcharles v. Weigeman, 113 Pa. St., 431; Mitchell v. People, 117 Ill., 294.
    Counsel for plaintiff in error are mistaken in assuming that this statute simply seeks to control the action of the officers and agents of the state. It goes further, and undertakes to make the persons who enter into independent contracts with the state, and with its political subdivisions, and their subcontractors and flie laborers and mechanics employed by both, agents and employes of the state, and of its various political subdivisions, and prohibits them from making such contracts as they may see fit in regard to the hours of labor per day. For this reason alone the statute is unconstitutional. Palmer v. Tingle, 55 Ohio St., 442.
    The statute is also unconstitutional in its provisions relating to the officers and agents of the state, ánd the political subdivisions thereof. It is administrative, and not legislative. What the stipulations, and terms of contracts shall be is a matter of executive determination, and when the legislature undertakes to dictate what the specific terms of a contraqt shall be, or any part of it, it is assuming an executive function which does not belong to it. State ex rel. v. Commissioners, 54 Ohio St., 333.
    It is an assumption of powers over municipalities, not possessed by the general assembly. The statute undertakes to dictate certain terms of the contract as to each and every contract to which the state, or any political subdivision thereof, is a party. . This includes contracts like tlie contract in question, which is concerned about the building of a sewer in one of the city’s streets. New Orleans, etc., Ry. v. New Orleans, 26 La., 478; Board of Education v. Blodgett, 155 Ill., 441; Atkins v. Town of Randolph, 31 Vt., 226. To the same effect are the following cases: Park Commrs. v. Council of Detroit, 28 Mich., 228; State ex rel. Rodgers v. Coler, 166 N. Y., 1; Taylor v. Porter, 4 Hill, 143; Hampshire v. Franklin, 16 Mass., 83.
    The distinction between the public and private functions of a municipal corporation have been long-recognized by the courts of this state. Western College v. Cleveland, 12 Ohio St., 375; Cincinnati v. Cameron, 33 Ohio St., 336.
    This statute is invalid on so many grounds that it is difficult to enumerate them all and discuss each separately. But it is distinguishable in no essential principle from the statute under consideration by the court of appeals of New York, in the case of People ex rel. Rodgers v. Coler, 166 N. Y., 1, and is subject to all of the constitutional defects which that court found to exist in the New York statute.- And in addition thereto, it violates sections 1 and 19 of our bill of rights, and section 26 of article 2 of the constitution. It discriminates even between contractors for the various kinds of public work, and of work to be done for the state and for its various subdivisions. The person who contracts to repair a canal for the state, and the person who contracts to build a sewer for a municipality, come within the provisions of the statute, are controlled by its terms, and are subject to its penalties, while a person who contracts to operate or improve a farm connected with a state, county •or municipal infirmary does not. It therefore denies to the former the same liberty and protection of the laws which is allowed and extended to the latter in the making of contracts in their occupation in life. State v. Gardner, 58 Ohio St., 599; In re Gilbert D. Preston, 45 W. L. B., 34; Wheeling Bridge & Terminal Co. v. Gilmone, 8 C. C. R., 665; Diemer v. Hudson, 9 Circ. Dec., 858; 18 C. C. R., 890; Diemer v. Hudson, 37 W. L. B., 194; Low v. Rees Printing Co., 41 Neb., 127.
    We respectfully submit that the provision of the statute in section 2 requiring that an inspector or officer shall see that the provisions of the statute are complied with and report to the proper officer, etc., is in conflict with section 16, article 1, of the constitution. Edson v. Crangle, 62 Ohio St., 49; Rosebaugh v. Saffin, 10 Ohio, 31. The New York court of appeals, in People ex rel. Rodgers v. Color, 166 N. Y., 1, has recently declared unconstitutional a statute substantially the same as the one in question in this action.
   Grew, J.

In this case the City of Cleveland, defendant in the court below, for answer to the claim made against it by plaintiff below, The Clements Bros. Construction Company, pleaded by way of justification, and as its only defense, the provisions of an act of the Ohio legislature, passed April 16, 1900, and entitled: “An act to provide for limiting the hours of daily service of laborers, workmen and mechanics employed upon public works, or of work done for the state of Ohio, or any political subdivision thereof, providing for the insertion of certain stipulations in contracts of public works; imposing penalties for violations of the provisions of this act, and providing for the enforcement thereof.” The sufficiency of this answer, as a defense, was challenged by a demurrer filed thereto by plaintiff. Whether snch answer was and is sufficient, and the matter so pleaded defensive, depends entirely Upon whether said act of April 16, 1900, is a valid and constitutional enactment. The provisions of this law are as follows:

“Section 1. The service of all laborers, workmen and mechanics employed upon any public works of, or work done for the state of Ohio, or for any political subdivision thereof, whether said work is done by contract or otherwise, shall be, and is hereby limited, and restricted to eight hours in any one calendar day; and it shall be unlawful for any officer of the state, or of any political division thereof, or any person acting for or on behalf thereof, or any contractor, or subcontractor for any part of any public works of, or work done for such state, or political subdivision thereof, or any person, corporation or association whose duty it shall be to employ or to direct and control the services of such laborers, workmen or mechanics, or who has in fact the direction or control of the services of such laborers, workmen or mechanics, to require or permit them, or any of them, to labor more than eight hours in any one calendar day, except in cases of extraordinary emergency, caused by fire, flood or danger to life and property, and except to work upon public, military or naval works or defenses in time of war, and except in cases of employment of labor in agricultural pursuits.
“Section 2. Each and every contract to which the state of Ohio, or any political subdivision thereof, is a party, and every contract made for or on behalf of the said state, or any subdivision thereof, which contract may involve the employment of laborers, workmen or mechanics, shall contain a stipulation that no laborer, workman or mechanic in the employ of the-contractor, or any subcontractor doing or contracting to do any part of the work contemplated by the contract, shall be required or permitted to work more than eight hours in any one calendar day, except in cases of extraordinary emergency, caused by fire, flood, or danger to life or property, and except to work upon public, military or naval work, or defenses in time of war, and except in cases of employment of labor in agricultural pursuits, and each and every (such) contract shall stipulate a penalty for such violation of the stipulation directed by this act, of ten dollars per each laborer, workman or mechanic, for each and every calendar day in which he shall labor more than eight hours, and the inspector or officer, or person whose duty it shall be to see that the provisions of any such contract are complied with, shall report to the proper officer of such state, or political subdivision thereof, all violations of the stipulation in this act provided for in each and every subcontract, and the amount of the penalties stipulated in any such contract shall be withheld by the officer or person whose duty it shall be to pay the moneys due under such contract, whether the violations for which such penalties were imposed by contractor, his agents or employes, or any subcontractor, his agents or employes, no person on behalf of the state of Ohio, or any political subdivision thereof shall rebate or permit any penalty imposed under such (anyj stipulation herein provided for, unless upon a finding which he shall make up and certify that such penalty was imposed by reason of an error of fact. Nothing in this act shall be construed to authorize the collection of said penalty from the state, or any political subdivision thereof.
“Section 3. Any officer of the state of Ohio, or any political subdivision thereof, or any person acting for ■or on behalf thereof, who shall violate the provision of this act, shall be deemed guilty of a misdemeanor, and •shall he subject to a fine or imprisonment or both, at the discretion of the court, the fine not to exceed five hundred dollars, nor the imprisonment more than one year.
“Section 4. All acts and parts of acts inconsistent with this act, in so far as they are inconsistent, are hereby repealed.
“Section 5. This act shall take effect and be in force from and after its passage.”

The court of common pleas held this law to be constitutional, and held that the answer of defendant, the City of Cleveland, constituted a good defense to the plaintiff’s cause of action, and overruled the plaintiff’s demurrer thereto and gave judgment for ¡said City of Cleveland. This ruling and judgment of the court of common pleas was reversed by the circuit •court of Cuyahoga county, on the sole ground that the court of common pleas erred in overruling the demurrer of plaintiff to said answer. And said circuit court proceeding to render the judgment that the court of common pleas should have rendered, held •said law to be unconstitutional and sustained said demurrer to said answer. And said defendant not desiring to plead further, said circuit court rendered judgment in favor of plaintiff, The Clements Bros. Construction Co., and against said City of Cleveland for the full amount claimed by plaintiff. If the law under consideration is constitutional, then this judgment of the circuit court is erroneous and •should, in this proceeding, he reversed; but if, as found by the circuit court, such law is unconstitutional, then the judgment of said circuit court was right and should be affirmed. Whether such law is constitutional is the sole question presented by the record in this case.

While the particular statute here in question has, not, prior to this time, been before this Court for review, nor has. the precise question here presented heretofore been decided by this Court, yet we are not without pertinent authority and direct adjudication by the courts of last resort in other states, upon the question here involved, and this Court has more than once-been called upon to consider and determine the constitutionality of statutes which were somewhat analogous to the statute under consideration, in that they had for their purpose, or did in effect, limit and restrict the right of contract between employer and employe; and in every instance such statutes have been declared and held by this Court to be unconstitutional.

Counsel for plaintiff in error in this case apparently do not question the correctness of these decisions, and in argument they concede that it is'beyond the power of the legislature to control by legislative-enactment the contracts Avhich shall be made betAveen employer and employe Avhen those persons are indiAdduals or corporate persons and the subject matter-of their contracts is not necessary to be regulated for police reasons. And such clearly is the established law of this and other states. But, they contend that the statute here in question is not an attempt by the legislature of Ohio to restrict or interfere with the right of liberty to contract, but is only in the nature of a direction by a principal to his agent, and therefore within the legislative authority, and matter of' concern to the principal and agent only. They argue-that the several municipal governments of the state.are not in themselves independent and sovereign, but are subdivisions of the general government, created by it with enumerated powers, and with no powers except such as may be fairly drawn from their charters or creation. Hence, they contend that being mere subdivisions of the state, and deriving their powers from the state, such municipalities may be lawfully directed by the legislative will as to what contracts they may make and what provisions and stipulations their contracts shall contain; and that in the contract here in question, the City of Cleveland being a mere agency and instrument of the state, the state- had the right by and through its legislature, to direct and'require the city, as its agent and representative, to insert in this contract the stipulations and provisions therein found. The fallacy of this contention lies in the assumption that the compulsory authority of the legislature over municipal corporations is so absolute and arbitrary that it may dictate the specific terms upon which such municipality shall contract, and may prescribe what stipulations and conditions its contracts shall contain, although such contracts may, as in this case, relate only to matters of purely local improvement. This is a misapprehension of the legislative authority, for no such right or power has been delegated to, or is possessed by, the general assembly.

As said in 4 Hill (N. Y.), 114: “Under our system of government the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary its acts, like those of the most humble magistrate in the state who transcends liis jurisdiction, are utterly void. Therefore, as the security of life, liberty and property lay at the foundation of the social compact, to say that the grant of legislative power includes the right to attack private property would be equivalent to saying that the people had delegated to their servants the power of defeating one of the great ends for Avhich government Avas established. This end being the protection •of the absolute right to life, liberty and property.”

Again counsel for plaintiff in error are mistaken in the assumption that the statute here under consideration is, and should be regarded as, a mere direction by the sovereign authority, the state of Ohio, to one of its agents, the City of Cleveland, that contracts made by said city in certain cases, and for a certain character of work, are to be made in a particular way. In the case of People ex rel. Rodgers v. Coler, 166 N. Y., 1, a statute distinguishable in no essential feature from the statute here under consideration was before the Court of Appeals of that state for review, its constitutionality having been • challenged. O’Brien, judge in that case, in discussing the proposition we are now considering, speaking for the majority of the court, says: “Nor is it entirely true that the statute is a mere direction by the sovereign authority to one of its own agencies to contract in certain cases in a particular way. It is all that no doubt and very much more since it affects personal and municipal rights in many directions that are of vastly more importance than the mere form of a contract to perform municipal Avork. It is true enough that a city is an agency of the state to discharge some of the functions of government, but these terms do not adequately describe its true relation to the state or the people. A municipal officer directing a local improvement is not the agent .of the state. lie is the agent of the city and the city alone is responsible for his negligence or misconduct. If the authorities in charge of the streets of a city are agents of the state, the city ought not to be held liable for their acts or omissions. * -* the city is a corporation possessing all the powers of corporations generally and cannot be deprived of its property without its consent or due process of law any more than a private corporation can,, and since its revenues must be used for /municipal purposes, it is difficult to see how the legislature can make contracts for it which involve the expenditure of these revenues without its consent.” And further in the same opinion it is said: “The right which is conceded to every private individual and every private corporation in the state to make their own contracts and their own bargains is, (by this statute) denied to cities and to contractors for city work; and moreover if the latter attempt to assert such right the money earned on the contract is declared forfeited to the city without the intervention of any legal process, or judicial decree. * * *

The contractor is a private individual engaged ini private business. When he enters into a fair and: honest contract for some municipal improvement,, that contract is property entitled to the same protection as any other property. It is not competent for the legislature to deprive him of the benefit of this, contract by imposing burdensome conditions with respect to the means of performance, or to regulate the' rate of wages which he shall pay to his workmen or to withhold the contract price when such conditions are' not complied with in the judgment of the city. When he is not left free to select his own workmen upon such terms as he and they can fairly agree upon, he.'is deprived of that liberty of action and right to accumulate property embraced within the guaranties of the constitution, since his right to the free use of all his faculties in the pursuit of an honest vocation is so far abridged. * * * The exercise of such a power is inconsistent with the principles of civil liberty, the preservation and enforcement of which was the main purpose in view when the constitution was enacted. If the legislature has power to deprive cities and their contractors of the right to agree with their workmen upon rates of compensation, (or the number of hours that shall constitute a day’s labor), why has it not the same power with respect to all private persons and private corporations? That question can be answered in the language which this court used when a case with features somewhat similar was under consideration. ‘Such legislation may invade one class of rights to-day and another tomorrow and if it can be sanctioned under the constitution, while far removed in time, we will not be far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed and the reaping of grain, and governmental ordinances regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people land a large range of other affairs long since in all .civilized lands regarded as outside of governmental functions.’ ” As suggested by counsel for defendants :in error, the statute here under consideration, absolutely ignores the fact that municipal corporations in their property rights, and their power to make contracts for local improvements for the benefit of their own citizens, are entitled to the same immunities and are protected by the same constitutional guarantees which shield, the property of individuals or private corporations from legislative aggression. In considering the rights and powers of municipal corporations, in the case of Railroad Co. v. New Orleans, 26 La. An., 481, the Supreme Court of Louisiana says: “A municipal corporation possesses two classes of powers, and two classes of rights, public and private. In all that relates to one class, it is merely the agent of the state, and subject to its control. In the other, it is the agent of the inhabitants of the place; the corporators: maintains the character and relations of individuals, and is not subject to the absolute control of the legislature, its creator.”

In the case of Atkins v. Town of Randolph, 31 Vt., 237, Judge Barrett announcing the opinion of the Supreme Court of Vermont, states the proposition as follows: “It is true as was urged in argument by the learned counsel for plaintiffs, that in some respects legislatures have power in respect to municipal corporations that they have not in respect to private corporations, or individuals. They may alter or abolish municipal corporations at pleasure, but yet, not so as to defeat the pecuniary rights of individuals as against such corporations, or as depending upon their existence. The legislature has the same power in respect to private corporations, when that power is reserved in the law creating them. So far as a municipal corporation is endowed by law with the power of contracting, and as such, is made capable of acquiring, holding and disposing of property, and subject to the liabilities incident to the exercise of such power and capacity, thus being vested with legal rights as to property in contracts and improvements, and subject to legal liabilities in respect thereof, to be ascertained and enforced by suit in the ordinary judicial forums, with the same principles and by the same-means as in the case of a private corporation, such municipal corporation must stand on the same-ground of exemptions from legislative control and. interference as a private corporation.

As to third persons who seek to enforce pecuniary liabilities against towns arising upon contract, such towns are merely private corporations or individuals, and in this respect they are not affected by the purely municipal public and political features that appertain to their corporate existence in virtue, and in reference to which alone they are subject to the absolute control of legislation.”

And to the same effect is the case of the Board of Park Commrs. v. Common Council of Detroit, 28 Mich., 228.

This distinction as to the powers delegated to municipal corporations was clearly recognized and commented upon by this Court in the case of Western College v. Cleveland, 12 Ohio St., 375. In that case,. Judge Gholson, announcing the opinion of the Court,, at page 377, says: “It is the duty of the state government to secure to the citizens of the state, the peaceful enjoyment of their property, and its protection from wrongful and violent acts. For the proper discharge of this duty power is delegated in different modes. One of these is the establishment of municipal corporations. Powers and privileges are also conferred upon municipal corporations, to be exercised for the benefit of the individuals of whom such corporations are composed; and in connection with these powers and privileges, duties are sometimes,, specifically imposed. It is obvious that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect persons and property, whether to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the territory comprised within the limits of the corporation, and its adaptation to the purposes of residence or business. As to the first, the municipal corporation represents the state, discharging duties incumbent on the state; as to the second, the municipal corporation represents the pecuniary and proprietary interests of individuals. As to the first, responsibility for acts done or omitted is governed by the same rule of responsibility which applied to like delegations of power; as to the second, the rules which govern the responsibility of individuals are properly applicable.” See also Cincinnati v. Cameron, 33 Ohio St., 366.

The liberal quotations, in this opinion, from the authorities above cited need no further apology upon our part than to say, that if the principles there announced and the conclusions there reached are correct, and we believe they are and adopt them, that they conclusively refute and answer the contention of plaintiff in error that the statute under consideration in this casé does not restrict the right of liberty to contract and is in the nature only of a direction by a principal to its agent.

Again, stripped of its provisions, except so far as they relate to contractors and subcontractors the first section of the statute under consideration reads as follows: “It shall be unlawful for any contractor, or subcontractor for any part of any public works of, or work done for such state, or political subdivision thereof, or any person, corporation or association whose duty it shall be to employ or to direct and control the services of such laborers, workmen or mechanics, or who has in fact, the direction or control of the services of such laborers, workmen or mechanics, to require or permit them, or any of them, to labor more than eight hours in any one calendar day.”

Thus it is apparent that this statute, which is peremptory in terms, is more than a mere direction by a principal to an agent, and that its provisions apply not only to officers and agents of the state of Ohio, but that they apply with equal force to all persons who would enter into contracts with the state or any of its political subdivisions, and undertakes to limit and restrict such persons in their right to contract by prohibiting the making of contracts for day’s work of more than eight hours. What the terms and stipulations of a contract shall be is matter to be determined by the contracting parties, and the right has not been delegated to, nor is it within the power of the general assembly, by mandatory laws to prescribe the terms and provisions that shall be inserted in contracts that may be made between persons legally competent to contract. Doubtless the legislature might, in the absence of contract between the parties, prescribe the number of hours’ labor that should constitute a day’s work, but it is not in the power of the legislature, by the enactment of a positive law, to abridge the right of parties to fix by contract the number of hours that shall constitute a day’s work, nor to deny effect to the stipulations and agreements of the parties themselves touching such matter, except only as the exer- ■ cise of such power may be authorized for the common welfare; and the right to so exercise this power of restraint extends only to matters affecting the public welfare or the health, safety and morals of the community. The number of hours’ labor that shall be performed in a day is an important factor and constitules mi essential part of every contract of service, and to deny effect to tlie stipulations or agreements between employer and employe touching the number of hours the employe shall labor each day, is, in effect, either to impair the obligation of their contract or to deny to them the right to stipulate or contract touching that matter. The latter is the right denied by the statute here in question. It is, we take it, axiomatic, that in service contracts the right to contract, necessarily includes the right to fix by agreement the number of hours that shall constitute a day’s work for the person employed, but by the terms and provisions of this statute, the parties are not left free to negotiate respecting this matter between themselves, but the number of hours which shall constitute a legal day’s work for the laborer employed on work done for the municipality is, by this statute, arbitrarily fixed and determined, and the statute further provides just what stipulations in this respect shall, by the contracting parties, be incorporated in their contract, and enacts that noncompliance with the provisions of said statute shall be deemed a misdemeanor punishable by fine or imprisonment or both at the discretion of the court. The privilege of making and entering into contracts is more than a mere license or liberty. It is a property right. It is an essential incident to the acquisition and protection of property, and is such right as the legislature may not arbitrarily and without sufficient cause either abridge or take away.

In the case of Palmer & Crawford v. Tingle, decided by this Court and reported in 55 Ohio St., 423, the second clause of the syllabus is as follows: “Liberty to acquire property by contract, can be restrained by the general assembly only so far as such restraint is for the common welfare and equal protection and benefit' of the people, and such restraining statute must be of such a character that a court may see that it is for such general welfare, protection and benefit. The judgment of the general assembly in such cases is not conclusive.” '

There is one other claim of counsel for plaintiff in error upon which they seem to place some reliance, that should perhaps be briefly noticed, and that is as to the matter of estoppel on the part of defendant in error. Counsel for plaintiff in error say in their brief: “It is plain that the municipality itself cannot complain, for, as has been shown above, it is merely an agency of a higher power, to-Avit: the state, and can only contract as it is authorized by that poAver to do; nor can the contractor be heard to complain, for the city, in pursuance of its granted poAvers, and under restrictions imposed by the act in question, in effect said to him and all otheirs, when it invited bids for the performance of the work, ‘The statute is one of the conditions which must be complied Avith, and an obligation which must be assumed by the contracting party.’

“The contracting party (The Clements Bros. Construction Co.) Avas not compelled to bid, it did so voluntarily, with full knowledge, and Avhen awarded the contract executed it voluntarily, knowing all of its provisions, and assumed the obligations and conditions imposed by the statute.”

It Avould, perhaps, be a sufficient ansAver to this claim of plaintiff in error to say, that the stipulation referred to became a part of the contract not because of any voluntary agreement betAveen the parties that it should be inserted therein, but because the statute forcibly injected it. And that such is the fact we think sufficiently appears from the language of the contract which immediately follows such stipulation. That language is: “The foregoing stipulation is made by reason of and to conform to the requirements of an act of the general assembly of the state of Ohio, ho provide for limiting the hours of daily service of the laborers, workmen and mechanics employed upon public works, or of work done for the state of Ohio, or for any political subdivision thereof, providing for the insertion of certain stipulations to any contracts •of public works’ etc., passed April 16, 1900, to the extent that the provisions of said act are applicable in the performance of this contract.”

But further upon this proposition, as especially pertinent, we quote again from the opinion of Justice O’Brien in the case of People ex rel. Rogers, above cited. lie says: “The fact that certain provisions of the labor law were actually incorporated into the con-, tract signed by the contractor, cannot change or add •anything to the strength of the position assumed by the city. The relator is not estopped by the agreement when there is no element of estoppel in the case, and the question is with respect to the validity of the statute, and not the construction or effect of the contract in that regard. If the law is valid, it governs the contract and the rights of the parties, whether actually incorporated into writing or not, since all contracts are assumed to be made with a view to existing laAvs on the subject. If it is not valid, the contractor has not made it so by stipulating in writing to obey it, and prescribing the penalty for his own disobedience, which is the forfeiture of all rights under the agreement. It is not in the power of the legislature to nroteet an invalid law from judicial scrutiny by providing that it must receive the assent of the parties to every contract to which it relates. * * * Courts in such cases, are not bound by mere forms, but must look at the substance of things, and so viewing 'this transaction, it would be idle to attempt to deceive ourselves with the idea that the question involved in this appeal arises out of the stipulations of the parties to the contract, or is governed by them, rather than the provisions of a statute. The contract is in the form that Ave find it, not because the parties so elected to contract, but for the reason that the statute Avould not permit them to contract in any other way.”

As to the further claim of plaintiff in error that “Even if the provisions of the statute were not actually inserted therein, they Avould be read into the contract as a part of the Iuav of the state,” for answer we need only refer to the third paragraph of the syllabus of Palmer and Crawford v. Tingle, 55 Ohio St., 438, which syllabus is as follows: “While a valid statute regulating contracts is, by its OAvn force, read into, and made a part of such contracts, it is otherwise as to invalid statutes.”

As bearing more or less directly upon the questions herein considered, in addition to the authorities above cited, the following cases will be found instructive: State v. Loomis, 115 Mo., 307; Godcharles v. Wigeman, 113 Pa. St., 431; Ex parte Kuback, 85 Cal., 274; State v. Goodwill, 33 W. Va., 179; Commonwealth v. Perry, 155 Mass., 117; Low v. Rees Printing Co., 41 Neb., 127; People v. Gillson, 109 N. Y., 389; In re House Bill No. 203, 21 Colo., 27; Ib., 21 Colo., 29; State of Ohio v. Lake Erie Iron Co., reported in 33 Law Bulletin, page 6, and affirmed by this court, 51 Ohio St., 632; Marsh et al. v. Poston & Co., reported in 35 Law Bulletin, page 327, affirmed by this court in 54 Ohio St., 681. The Wheeling Bridge and Terminal Co. v. Gilmore. 4 Circ. Dec., 366: 8 C. C. R.. 658.

Our conclusion in this case is, that the statute relied upon and pleaded by plaintiff in error, as a defense to the claim of defendant in error, is unconstitutional, because in conflict with sections 1 and 19 of the Bill of Rights. And therefore such statute cannot avail the city as a defense to shield it from liability to defendant in error, for the amount due said defendant in error under its contract. The circuit court was right in sustaining the demurrer to the answer and in rendering judgment against the city, and that judgment is therefore

Affirmed.

Burket, C. J., Spear, Davis, Shaucic and Price, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Garlick v. The Pittsburgh & Western Railway Co. et al.

      Transfer of property by deed — N. Y. P. & O. R. R. grants by deed property to P. G. cG T. R. R.- — G. & M. acquires same from grantee — Original grantor estopped to receive by deed from G. £ M. — Provisions of deed — Acquirement of property by appropriation — Abandonment of same — Estoppel.
    1. On July 2G, 1883, the N. Y., P. & O. R. R. Co., assuming to-have title, but which was imperfect, for valuable consideration received, executed and delivered to the P., C. & T. R. R. Co., a deed in which the “grantor does give, grant, remise and release and forever quitclaims unto the grantee, its successors and assigns forever, all such right and title as it, the said grantor, has or ought to have” in and to certain lands used and to be used for railroad purposes, . with a railroad constructed thereon, which deed in the habendum clause contains the following recital and obligation: “To have and to hold the premises aforesaid, sub-|> ject to the hereinbefore recited agreements and stipula-!* tions of the said contract of submission to arbitration unto the said grantee, the said P., C. & T. R. R. Co., its successors and assigns, so that neither it, the said grantor nor its successors and assigns, nor any other person claiming title through or under it, shall or will hereafter claim or demand any right or title to the premises herein conveyed, except as in the aforesaid stipulations provided, or any. part thereof, but they and every one of them shall by these presents, be excluded and forever barred.”
    And on September 6, 1885, the grantor in the above deed received as grantee, a conveyance for the same premises from the Cleveland & Mahoning Valley Railway Co., who acquired the said premises by appropriation in the year 1880.
    Held: That the N. Y, P. & O. R. R. Co., the grantor to the first deed of July 26, 1883, is estopped from acquiring the said subsequent title, and that by reason of the above covenant, such subsequent title inures to the benefit of its grantee, The P. C. & T. R. R. Co.
    2. A railroad company organized under the laws of Ohio, may acquire title to lands within the state for railroad purposes either by grant, or proceedings in appropriation, and when the right of way is thus acquired, and the company has constructed its railroad thereon, the same becomes such title to and interest in the lands acquired, that without intending to abandon the same, said company may sell and convey to another corporation for like railroad purposes all, or a part of the premises’so acquired. The question of abandonment is one of intention and to be determined from the nature of the conveyance itself and the attending facts and circumstances.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Mahoning county.
    The Pittsburgh & Western Railway, Thomas M. King, receiver, and the Pittsburgh, Cleveland & Toledo Railroad Co., under favor of Section 5779, Revised Statutes, on April 4,1899, commenced an action in the court of common pleas, against the plaintiff in error, Henry M. Garlick, to quiet their title to certain real estate used as a right of way for railroad purposes, which is described in the petition, being a strip of land in the city of Youngstown about twenty-five and one-half feet in width and about five hundred and two feet and seven inches in length.
    The other defendants in error, The Pittsburgh, Youngstown & Ashtabula Railroad Co. and The Pennsylvania Co., were joined with Garlick as defendants, as claiming some right or interest in the premises. The petition recites certain conveyances and certain proceedings in appropriation, which tend to support the title of plaintiff and which fully appear in the findings of fact made by the circuit court. The •commencing of the action followed the service of notice on said companies to institute proceedings in appropriation, and that in default thereof, Garlick would bring suit under the statute to compel appropriation.
    Henry M. Garlick answered the petition, and after some admissions of matters not disputed, denied that the plaintiff has entered into possession of a portion •of the lands described in the petition; but admitted that he claims to own all the said lands, and avers that he is the absolute owner of the same in fee simple. The answer denies that the plaintiffs have any title to or interest in said lands.
    The Pittsburgh, Youngstown & Ashtabula Rail-Toad Co., and The Pennsylvania Co., filed an answer and cross-petition, claiming possession and title to a certain portion of said lands, giving the source and nature of their title, and denying the title of Garlick, and ask to have their title protected and the cloud thereon removed. Garlick answered this cross-petition, denying that the cross-petitioners have any title to or right of possession of the premises described in the cross-petition. The facts of the case made on the petition and this cross-petition and answers thereto, were found by the circuit court and appear in its findings of facts.
    On the issues joined the court of common pleas found in favor of Garlick and against the plaintiffs and the . cross-petitioners, and rendered judgment accordingly, from which an appeal was taken to the-circuit court. On full trial in that court, the plaintiffs and cross-petitioners prevailed against Gariick, and a decree was made as prayed for. The other-material facts are stated in the opinion. To the decree made by the circuit court, Gariick prosecutes error in this court.

      Messrs. Arrel, McVey & Robinson and Messrs. Hine & Kennedy, for plaintiff in error.

      Messrs. Jones & Anderson, and Messrs. Carey & Mullins, for defendants in error.
   Price, J.

From the lengthy findings of fact made-by the lower court, we shall endeavor to gather and bring into a smaller compass the salient and material features of the controversy, and briefly state the-positions and attitude of the parties concerned in this, litigation.

The Pittsburgh & Western Railway Co. is the lessee of its coplaintiff, The Pittsburgh, Cleveland &. Toledo Railroad Co.; and The Pennsylvania Co. is-the lessee of its codefendant and cross-petitioner, The Pittsburgh, Youngstown & Ashtabula Railroad Co., and these lessees assert all the title, possession and rights of possession which their respective-leases confer.

All the parties hereto claim under one common-source of title — the Parmlees. The plaintiff in error,. Gariick, holds under a quitclaim deed from the Parmlees for a consideration of $1,000.00, which deed was. executed and delivered to him on January 3, 1899; while the plaintiffs in the lower court claim to hold under conveyances and certain appropriation proceedings made and had long prior to the date of Gar-lick’s deed.

The cross-petitioners assert title through conveyances from Parmlees and their successors in the chain of title, all of Avhich Avere ■ made prior to the deed to Garlick, and under Avhich chain of title, they claim possession and occupation of the premises described in their deeds.

It seems to be true, that the interests and claims of the cross-petitioning railroad companies, are not adverse to the interests and demands of the plaintiffs, and in considering the questions involved Ave will folloAV the natural order presented by the pleadings and the arguments of counsel. Following this order Ave examine the grounds relied on by the plaintiffs for the relief they demand.

In October, 1880, the Cleveland & Mahoning Valley Railway Co., an Ohio corporation, commenced against the Parmlees, in the probate court of Mahoning county, proceedings to appropriate as right of Avay for railroad purposes the land described in the petition in this case, and other lands, and as a result of said proceedings the value of the land appropriated was found to be $13,282.50, which finding was afterwards confirmed and made a matter of record in said probate court. Subsequently, and after a dispute as to aaJio should receive the sum so found, it. was awarded to the Parmlees. Thereupon the New York, Pennsylvania & Ohio Railroad Co., instead of the Cleveland & Mahoning Valley Railway Co., -paid the money into court and at once took possession of the lands thus appropriated.

On or about July 26, 1883, the New York, Pennsylvania & Ohio Railroad Co. executed and delivered to the Pittsburgh, Cleveland & Toledo Railroad Co. .a ■deed duly executed, for the lands described in the petition, and perhaps other lands, and the latter company at once took possession of the road so purchased and constructed thereon its main line of railroad, and has ever since continued in possession. The contents of this instrument are very material to the issues as we shall presently see.

On September 6, 1885, the Cleveland & Mahoning Valley Railway Co. duly executed and delivered to the New York, Pennsylvania & Ohio Railroad Co. a deed for the lands in dispute and other lands which had been appropriated under the proceedings of the year 1880.

Now, if the conveyance of July 26, 1883, from the New York, Pennsylvania & Ohio Railroad Co. to the Pittsburgh, Cleveland & Toledo Railroad Co. was a mere quitclaim, without covenant, or other obligation contained therein as an estoppel to a title which the former might subsequently acquire, the latter company is without title. But is it merely a quitclaim or general release?

We, therefore, necessarily have before us for examination the contents of this deed, and on its granting clause, and more especially on recitals and solemn covenants found therein, the conveyance of September i;6, 1885, it is claimed, inures to the title and benefit of ;the Pittsburgh, Cleveland & Toledo Railroad Co., which it received under the conveyance of July 26, 1883.

The latter deed recites a contract previously made between the grantor and grantee, wherein, among other clauses and stipulations, it is stated that the Pittsburgh, Cleveland & Toledo Railroad Co. desired to acquire for the purpose of right of way the lands pf said N. Y., P. & O. Railroad Co. defined on maps, descriptions and stipulations attached thereto, and which include the tract in dispute, and that the said companies had agreed to have an amicable appropriation made between them, and for that purpose certain arbitrators had been selected and agreed upon to fix the compensation and damages to be paid by the said P. C. & T. R. R. Co. by reason of the taking of said property; and that the arbitrators had determined the compensation and damages to be $45,750.00, which sum was paid to the N. Y. P. & O. R. R. Co., the grantor. Then follows the granting clause: “Does hereby give, grant, remise, release and forever quitclaim unto said grantee, its successors and assigns forever, all such right and title as it, the grantor, has or ought to have in and to the premises hereinbefore described,” etc.

But more important is the following language, though found in the habendum clause: “To have and to hold the premises aforesaid, subject to the hereinbefore recited agreements and stipulations of the said contract of submission to arbitration, unto ■ the said grantee, the said Pittsburgh, Cleveland & Toledo Railroad Co., its successors and assigns, so that neither it, the said grantor, nor its successors or assigns, nor any other person claiming title through or under it, shall or will hereafter claim or demand any right or title to the premises herein conveyed, except as in the aforesaid stipulations provided, or any part thereof, but they and everyone of them shall by these presents, be excluded and forever barred.”

There are many other stipulations copied into this deed from the agreement to arbitrate the compensation and damages to be paid by the grantee, whicli show that more than an ordinary quitclaim deed was in contemplation, and that more than such should be made. It is well enough to remember here that the parties had full knowledge, no doubt, of the appropriation proceedings instituted and completed in the year 1880, by the Cleveland & Mahoning Valley Railway Co., and that the grantor, The N. Y., P. & O. R. R. Co., had paid the Parmlees the $13,232.50 found due them in that proceeding, and that it had taken possession of said right of way for railroad purposes; furthermore, that by virtue of the said proceedings, the title which the law confers in such cases, had vested in the Cleveland & Mahoning Valley Railway Co.

In the light of these well-known facts and circumstances, the deed we are considering was made, containing the above recitals and obligations. With such broad, sweeping language, there ought to be no misunderstanding. The grantor expressly agreed that neither it “nor its successors or assigns, nor any other person claiming title through or under it, shall or will hereafter claim or demand any right or title to the premises herein conveyed, or any part thereof” * * *. That no doubt might be entertained about the intention of the parties, another clause of strong and fdecible words is added: “But they and every one of them shall by these presents be excluded and forever barred”

We agree with the circuit court that a conveyance containing such recitals and covenant is much more than an ordinary quitclaim or release. By the terms of the contract quoted in the deed the parties agreed upon amicable appropriation, and so denominate it, and the property to be so disposed of, is part of the same property which had been appropriated by the Cleveland & Mahoning Valley Railway Co. in the year 1880, and it was by that amicable appropriation to pass to another railroad company for railroad purposes, and upon what had been found to be a fair and satisfactory sum as compensation. This being railroad property, it would seem to be reasonable that the grantor was asked and had agreed to insert in the conveyance which should follow the payment of the award made by the arbitrators, some bar ■against it, subsequently acquiring a title adverse to its grantee, who paid the award. The parties were ■competent to construct such a bar, and, from the ■character of the property and the contents of the entire instrument, have they not entirely succeeded? •

We find no such provisions as we have quoted considered in any case cited for the plaintiff in error. One of these, cases is White v. Brocaw, 14 Ohio St., 339. In that case there was a division of lands between heirs to an estate in which mutual deeds were executed, and the deed under consideration by the court was in the ordinary form of bargain, sale and release, and purported to convey to the grantees “all the estate, right and title, interest, claim and demand, hoth in law and equity” of the grantors “of, in and to the said premises and every part thereof.” But the •conveyance contained no recital of any particular interest owned or possessed by the grantors, or intended to be conveyed. The covenant read, that the grantors agre'e to “warrant and forever defend the said ■premises against all persons claiming, or, to claim by, from or under them, their heirs or assigns.”

This Court held in that case, that under the terms of the deed and in the light of its origin, the covenant was only coextensive with the grant, and bound only the vested interests of the grantors in the property at the time, and did not extend to an after-acquired title. In Lessee of Boyd v. Longworth, 11 Ohio, 235, also, cited, no stronger case Avas made as to its facts, and Mr. Justice Burchard says on page 253: “An express Avarranty is the only contract which has the effect to estop the warrantor and those claiming under him, from maintaining title under a subsequent, purchase. The covenant must be one running with the land.”

The other Ohio case cited by plaintiff in error is. Hart v. Gregg, 32 Ohio St., 502. It is sufficient to say of that case that the deed there involved contained no covenant whatever, and is not of the slightest influence upon the present controversy.

The deed in the case now before us contained recitals of interest and estate which it was conveying;, the entire railroad property described therein, whether its extent was a conditional fee, or perpetual easement, and the covenant which it contained runs, with the estate conveyed, and it is expressly covenanted that the grantors, their successors and assigns, shall not claim or demand any right or title to. the premises conveyed or any part thereof, “but they and every one' of them shall by these presents be excluded and forever barred.” See Magruder v. Esmay, 35 Ohio St., 221; Van Rensselaer v. Kearney, 11 Howard (U. S.), 322.

We know of no reason Avhy the courts should not give the effect to this deed which the parties certainly intended. They appear to have had but one understanding of its meaning, and that is that the deed of September 6, 1885, from the Cleveland & Mahoning Valley Railway Co. to the grantor named in the former deed, inured to the benefit of the grantee therein named, The Pittsburgh, Cleveland & Toledo Railroad Co.

For over seventeen years, these companies have acted on this construction, and acquiesced in the occupation and control of the latter company as the legitimate result of the covenant referred to.

But how does the case of Garlick stand if this view is not correct? The title would be in the New York, Pennsylvania & Ohio Railroad Co., because it obtained a conveyance from the Cleveland & Mahoning Valley Railway Co., who had gained title from the Parmlees through the appropriation proceedings of the year 1880, while Garlick, by a much later deed, claims to hold under Parmlees. Hence, neither aspect of the case gives any title to Garlick.

However, the plaintiff in error contends that the title derived from the proceedings to appropriate the right of way on the one hand, and the conveyance from the Parmlees of the right of way for railroad purposes on the other, created but an easement and not a fee, in the premises thus acquired, and that, as it appears in this case, that the railroad companies so acquiring title undertook by deeds to convey the' easement to other railroad companies, the attempt to convey worked an abandonment of the title or easement, and the premises forthwith reverted to the original owners, the Parmlees, or their grantee, Gar-lick.

This proposition is broadly laid down and advocated with great ability, and at least apparent confidence. To support this proposition we have been led through the statutes providing for appropriation of lands for railroad purposes under the old and present constitutions of Ohio, and cases have been cited giving construction of such provisions, and the point is made that a fee simple title is not obtained by the appropriating companies, but at most an easement in-perpetuity, or as long as used for railroad purposes.

The circuit court concluded, as a matter of law, that by the completed proceeding in appropriation, “The Cleveland & Mahoning Valley Railway acquired a conditional fee in the lands, or at least such an interest therein as that the same could be and was conveyed to the N. Y., P. & O. R. R. Co. by its deed of September 6, 1885.” * *

We do not know that it is necessary or profitable for us to determine whether the estate so acquired is a fee conditional, or an easement, so long as used for the purposes of the grant or the appropriation. The right to enter into possession and to perpetually use, if desired, the premises for railroad purposes, is authorized by the law, and the only question is, may property thus obtained be conveyed to another company without working an abandonment.

As a case of first Impression we see no legal obstacle in the way of such conveyance. It Is but common knoAvledge that such properties are incumbered by mortgage to secure bonded indebtedness, and that foreclosure and judicial sale often occurs whereby a purchaser at the judicial sale enters into possession, and uses, occupies and controls the premises for railroad purposes as fully as if the title is one in fee simple.

In the case at bar we have one of the plaintiffs and one of the cross-petitioners holding under long termed leases, the premises granted to their lessors. We have also in this case the fact that the lessor and lessee companies, parties hereto, have, to the full knowledge of Garlick, been in possession and use of the premises in dispute before and when he obtained his quitclaim deed in January, 1899.

The question of abandonment is eminently one of intention. Treating the title as a mere easement for railroad purposes, what is the law? On page 707 of Washburn's Easements and Servitude, it is said: “It is not easy to define in all cases what would be such act of abandonment as would destroy a right of easement, and each case seems to be a matter for a jury to determine. But nothing short of an intention to so -abandon the right would operate to that effect, unless other persons have been led by such acts to treat the servient estate as if free of the servitude, and the same could not be resumed without doing injury to their rights in respect to the same. And in this it is not intended to embrace questions which may arise from a mere nonuser of an easement.” The same principle is held in Hatch v. Railroad Co., 18 Ohio St., 121.

In Railroad Co. v. Ruggles, 7 Ohio St., 1, this Court laid down the rule that: “Where a landowner granted a right of way to a railroad company organized under a charter in perpetuity, and the grant contains no limit as to time, the easement will be perpetual unless terminated by release or abandonment. Where such railroad, with its appurtenances, is subsequently pledged to the state in security for a loan, and the pledge being forfeited, is sold by the state, the easement passes by the sale and is vested in the purchaser. This result is in no way affected by the fact that the purchase is made, mediately or immediately, by another railroad company, if there be legislative authority to make the purchase, and if the original object and consideration of the grant of the easement be not thereby changed or defeated.”

The entire case is very instructive, and its principles, in large measure, can be applied to the subject before us, and they recognize the right of alienation of such property, either voluntarily, or through judicial proceedings. Also see Hatch v. Railroad Co., 18 Ohio St., 121.

The right of way is not all there is of a railroad. When it is procured, the construction thereon of the-roadbed, and the ties, bridges and rails, depots, sidings, etc., at great expense, are added, and form a part of the railroad property, and the union of these constitute a railroad, and is property that may be sold and conveyed. The attempts to make the conveyances challenged in this case did not of themselves work abandonment, and it is clear as the sunlight that the grantors had no intention that such a result should follow their acts. Instead of intending to-abandon the premises in the legal sense, the grantors, for a consideration sold and conveyed them to be used for the same purposes, which negatives the idea of abandonment. It is one of the findings of the lower-court that intention to abandon the property did not exist in this case.

It is urged Avith much force that this Court has decided otherwise in Platt v. Pennsylvania Co., 43 Ohio St., 228, and the case between same parties in Pennsylvania Co. v. Platt, 47 Ohio St., 366.

We have given those cases all due consideration,, and if we could go beyond the space allotted to this, opinion, they can be readily distinguished from the-case at bar. The facts in those cases are materially different, and the questions arose in a different manner, and hence we are not called upon to overrule them in order to decide this case. We are entirely clear, however, that the doctrine of those cases should not be extended beyond the particular facts upon which they stand.

We now come to the questions which pertain to the issues made by the cross-petition of the Pittsburgh, Youngstown & Ashtabula Railroad Co. and the Pennsylvania Co., and the answer of Garlick thereto. The pleadings and the findings of facts show that on November 23, 1870, Margaret R. and W. S. Parmlee (the common source of title), conveyed to the Liberty & Vienna Railroad Co. the lands described therein, of which lands the premises in dispute are ■a part, and that “The Pittsburgh, Youngstown & Ashtabula Railroad Co. has duly succeeded to and is now possessed of all the rights, title and interest in and to ■said lands conveyed and vested by said deed to The Liberty & Vienna Railroad Co. of November 23, 1870.”

The following is a part of the description in the deed- from the Parmlees to The Liberty & Vienna Railroad Co., after giving the points of termini: '“Said strip of land to extend from said Spring Common on the south or southeast to the land of said 'Thorn on the northwest, and in width to extend southwesterly from said staked center line twenty-five feet ■or a less distance, if less than twenty-five feet shall be sufficient for the slopes of said railroad, and to extend northeasterly from said center line so far as may be needed for the track or tracks of said railroad, the length of said strip of land being about 525 feet.”

The lower court has found that the grantee in this •deed constructed the main track of its railroad on the lands so described, and that the main track has ever ¡since been and now is being used and operated in the same place and position over said strip and without ■change of grade; and further that when said main track was constructed, the same at the southeasterly -end next to Spring Common, it was constructed on the berme bank of the old canal on a trestle thirteen feet in height above the bottom of said canal, which trestle gradually diminished in height tOAvard the northAvesterly line of the lands described in the petition, Avhere the main track Avas constructed on the natural surface of the ground. When the Pittsburgh, Cleveland & Toledo main track was built over its lands, the ground and bed of the old canal was filled up and graded to the level of the main track of the Liberty & Vienna Railroad, Avith the knoAvledge of the then occupiers and oAvners thereof. The surface of the ground and the bed of the canal were such that twenty-three feet from the center line of said main track was necessary to support the proper slope of the embankment of the southwesterly side of the main track. The height of the embankment and necessary width diminished gradually toward the northwesterly line of the strip, at which point the track was constructed without embankment, and that no embankment or slope was ever constructed on the southwesterly side of said track on any part of the strip described; but that said main track over the lands described in the deed of November 23, 1870, rested so far as needful upon said trestle until the main track of The P., C. & T. R. R. was constructed. This trestle was being gradually filled up by the Liberty & Vienna Railroad Co., while it owned and occupied the premises, and when the P. C. & T. constructed its track, the filling up of the trestle work Avas completed, the latter company occupying ten of the twenty-three feet so provided for the slope of the embankment and its support.

The full space of the twenty-three feet has been occupied and in use by these companies 'either in the process of construction or actual use after construetion, for many years, and we do not discern any substantial departure from the terms of the grant made by the Parmlees, which in substance was twenty-five feet in width from a certain line, if so much was necessary for the proper construction and support of the slope of an embankment for the railroad bed. Twenty-three feet were found to be necessary and have been used and occupied at one end of the strip, the height and extent of the slope gradually diminishing towards its northwesterly terminus. There, is nothing new in the extent of this occupation, and the ground occupied by the railroad companies is Avithin the boundaries fixed in the deed, all of which was open to the vieAV and knowledge of plaintiff in error Avhen he acquired his title.

What Ave have said on the question of abandonment we adopt in this branch of the case without repetition.

We discover no prejudicial error in the record, and adhere to the former judgment of affirmance of the judgment of the lower court.

Judgment affirmed.

Case No. 7214, Henry M. Garlick v. The Pittsburgh & Western Ry. Co. et al., and case No. 7215, Henry M. Garlick v. The Pittsburgh, Youngstown & Ashtabula R. R. Co., are a part of the same record, and are prosecutions in error to the same decree by parties in the original action, and are affirmed for the same reasons.

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


text:
    King et al. v. The Greenwood Cemetery Association.

      Act to enable cemetery associations — To secure land by appropriation for entrances — Invalidity of act, passed April 6, 1893 — Section 357//.-1, Revised Statutes — Contravenes section 19 of article 1 of constitution — Method of appropriation employed not legal — Right of appeal curtailed — Constitutional law.

    The act of the general assembly entitled “An act to enable cemetery associations to secure land for entrance to their grounds, or, for the improvement of entrances already made” passed April 6, 1893, 90 O. L., 153, and now Section 3574-1, Revised Statutes, is incompatible with section 19 of article 1 of the constitution of Ohio, and therefore void, for the reason, that by the provisions of said act, private property may be taken from the owner at a value placed thereon by .three freeholders appointed by the commissioners of the county, without providing therein for the right and means of an appeal by the landowners to some competent tribunal where he can have his compensation assessed by a jury.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Belmont county.
    The plaintiffs in error, William King, Isaac K. Kirkland, Samuel F. Trimble and George Workman are trustees of the Presbyterian church of Bethel, in Belmont county, and as such hold the legal title, in trust, for said church, in the real estate which is the subject of this controversy, being over an acre of land whereon the church building is situate.
    A part of this ground adjacent to the church is used by said church as a place of burial, which use is within the terms of the grant to-said trustees.
    The Greenwood .Cemetery Association, defendant in error, for the purposes of a cemetery, own lands adjoining the above described lands, and on or about August 6, 1900, the trustees of the association desiring to appropriate to its possession and use as an entrance to its grounds a strip thirty feet wide belonging to and forming a part of said church property, made application to the commissioners of said Belmont county for the appropriation of said strip, under the provisions of Section 3574-1, Revised Statutes. The county commissioners acting under said statute, appointed three disinterested freeholders of the county to yiew and appraise the “value” of said strip, and they appraised the same at $30.00, which sum was thereupon tendered by the cemetery association to plaintiffs in error, and it was about to enter upon and take possession of said strip when restrained by an injunction issued on a petition containing the foregoing as the material facts. The plaintiffs in that petition alleged that Section 3574-1, Revised Statutes, under which the appropriation proceeding was had, is unconstitutional and void for two reasons:
    First — That it does not provide any mode by which the landowner shall obtain any compensation, except the value of the land taken, making no provision for allowance of damages to the remaining land.
    Second — That it does not provide a jury for the assessment of compensation and damages, either before the commissioners or by appeal to any other tribunal.
    The case was heard and submitted in the court of -common pleas on the petition as the only pleading in the case. That court vacated the temporary injunction and dismissed the petition. On appeal the case was heard in the circuit court in like manner and' with like.result. The plaintiffs below prosecute ror in this court.for a reversal of the judgment of the «circuit court.

      Mr. C. L. Weems, for plaintiff in error.

      Mr. James C. Tallman, for defendant in error.
   Price, J.

This proceeding calls in question the validity of Section 3574-1 of our Revised Statutes., The section was enacted by the legislature on April 6,1893, and is entitled “An act to enable cemetery associations to secure land for entrance to their' grounds, or, for the improvement of entrances already made.” See 90 O. L., 153. The entire provision is as follows:

“Section 1. Be it enacted by the general assembly of the state of Ohio, that Avhenever in the judgment of the officers of any cemetery association within this, state, it is necessary to secure additional land for the purpose of malting an entrance to its grounds, or to improve an entrance already made, said officers may make application to the county commissioners of the county in Avhich said cemetery is located, for the appointment of appraisers. The county commissioners, shall, upon such application being made to them, appoint three disinterested freeholders of the county as. appraisers, whose duty it shall be to view the land sought to be obtained, appraise its value, and make' due return of said appraisement to the county commissioners; and when said cemetery association shall have made payment of the amount of said appraisement, together Avith the costs thereof, then the title of said land shall vest in said association. An appeal may be taken from the appraisement made by said appraisers to the probate court of the county in which, said cemetery, or such entrance, may be located, in manner provided in chapter 4, title 6 of the Revised Statutes of Ohio.
“Section 2. This act shall take effect and he in force from and after its passage.”

It is apparent that this process of obtaining title to the property of another is made exceedingly simple, if it does lack the qualities of fairness. In this case the trustees of the cemetery association concluded more land was needed for an entrance to the. cemetery, and made application .to that effect to the commissioners of the county who appointed three freeholders of the county to appraise the desired strip. They appraised its “value” at $30.00 and filed the appraisal with the commissioners. The statute says, that on payment of the amount to the landowner the title vests in the applicant association. Compensation for the land taken and injury to the remaining lands, which is contemplated by our state constitution, is not made a condition precedent to the passing of the title and right of possession. We need not stop to argue that this method of appropriating real property and awarding compensation is clearly unconstitutional, unless a right and means of appeal are given, whereby the landoAvner, in some appellate tribunal, can have his compensation and damages assessed by a jury. If such right and means of appeal are provided for the law may be sustained. See Lamb & McKee v. Lane, 4 Ohio St., 167; Reckner v. Warner, 22 Ohio St., 275; Chesbrough v. Commissioners, 37 Ohio St., 515.

The statute under consideration attempts to confer the right of appeal but limits it to the provisions of chanter 4, title 6 of the Revised Statutes, and if the right and means of appeal are not found there, clearly none exist. When we look to the statutes embraced in chapter 4, title 6, we find that they pertain to the construction of levees on proceedings commenced and conducted to completion in the probate court, and we look in vain for any method of appeal that could have applied in this case. In fact there seems to be no right of appeal conferred on any party connected with the proceedings authorized by chapter 4, title 6; and yet Section 3574-1 refers plaintiffs in error to that source to get a jury to assess their compensation and damages.

However, counsel for defendant in error says, the legislature intended to say chapter 4, title 7 instead of title 6, the latter figure being used by mistake. How does counsel ascertain the legislative intent? And how can we say that the general assembly intended to say title 7 rather than title 6?

It is true that the statutes in chapter 4, title 7 provide for appeal in road cases, but it seems to us we have no power to amend the legislative enactment. If the legislature made the mistake suggested, it alone can amend and correct it. The intent of the legislature is determined from what it says, and if its language is clear and unambiguous, the courts have no authority to change it. On this point it is sufficient to cite two recent cases decided by this Court: Hough v. The Dayton Manufacturing Co., 66 Ohio St., 427 ; Slingluff et al. v. Weaver et al., 66 Ohio St., 621.

We conclude that the act in question is incompatible with section 19 of article 1 of our constitution, and could not furnish the foundation for the proceedings taken by the defendant before the county commissioners. The judgment of the circuit court is reversed, and a decree of perpetual injunction is granted on the petition of plaintiffs in error as therein prayed for.

Judgment reversed and judgment for plaintiff in error.

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


author: Shauck, J.

text:
    Enck v. Gerding.

      Partnership stock mortgaged — To secure note of one partner— Mortgagors retain control of property — Mortgage void as to firm creditors — Death of partner — Survivor trustee for firm creditors — Law of partnership — Mortgage of personalty.

    A mortgage upon a stock of merchandise owned by a partner•ship and executed by its members individually to secure the note of a member, the property remaining in the possession of the mortgagors with authority to sell in the usual conduct of their business, is void as to the creditors of the partnership; and though it may be effectual to devote the individual interests of the mortgagors to the payment .of the note, the assets of the partnership, upon the death of one member are, until the appointment of a receiver, rightfully in the possession of the survivor as trustee for such creditors. notwithstanding the mortgage and a breach of its condition.
    (Decided December 2, 1902.)
    Error to the Circuit Court of Putnam county.
    On October 26, 1895, Mrs. Gerding brought suit in the court of common pleas against Enck and others,, to recover possession of a stock of merchandise and fixtures in a store at Leipsic, the same being the property of a copartnership recently existing between said Enck and one John G. Gerding, doing business as. Gerding & Enck. Tlie firm had been dissolved by the death of Gerding shortly before the bringing of the suit. Plaintiff was the mother of the said John G. Gerding, and she claimed possession of said chattels by virtue of a mortgage which had been executed to her to secure the payment of a note of her son, about four months before his death, the mortgage being executed by both members of the firm individually. The note had been executed January 1, 1895, and was payable January 1, 1896. The mortgage was executed June 25, 1895. At the time of the execution of the mortgage the chattels were left in the possession of the firm to enable it to proceed in the transaction of business as it had done before its execution, and it did so proceed with the consent of the mortgagee, the mortgage containing no condition for a lien on the goods to be thereafter purchased by the firm. Upon execution of the writ of replevin, a statutory bond for that purpose being executed by Enck, the chattels were returned to him. On November 19, 1895, David H. Richards was appointed receiver of the late firm, and ordered to take possession of all its effects, and on the thirtieth of the same month he filed an answer to the petition of Mrs. Gerding, alleging his appointment and qualification, and that he had at once taken possession of the effects of the late firm, including the mortgaged property, having received it from Enck, and that he was still holding it for the purpose of administering his trust. The averments of his answer were not denied. Upon the trial of the issues joined between .Mrs. Gerding and Enck, much testimony was offered respecting the matters of the partnership, the existence of a consideration for the note from John G. Gerding to the mortgagee, and notices and transactions after his death by virtue of which she claimed to have acquired from Enck constructive possession of the chattels prior to the bringing of her suit. Concerning the following facts there is no dispute: The debt which the mortgage was given to secure was never the debt of the firm; after the execution of the mortgage the firm continued in possession of the mortgaged chattels with the consent of Mrs. Gerding, making sales and purchases as before ; at the time of the dissolution of the firm its indebtedness was large in proportion to its assets, and it was probably insolvent; much of this indebtedness existed at the time of the execution of the mortgage. The court of common pleas found that at the commencement of the action the right to the possession of the chattels was in Mrs. Gerding, and rendered judgment in her favor for the amount of their value. Its judgment was affirmed by the circuit court.

      Messrs. Watts & Moore and Mr. J. Werner, for plaintiff in error, cited and commented upon the following authorities:

      Smetters v. Rainey, 14 Ohio St., 287; Wangerien v. Aspell, 47 Ohio St., 250; Alexander v. Morgan, Root & Co., 31 Ohio St., 546; 2 Greenl., section 561; Jones on Chat. Mort., 72; Freeman v. Rawson, 5 Ohio St., 1; Edgell v. Hart, 9 N. Y., 213; Collins v. Myers, 16 Ohio, 547; Harman v. Abbey, 7 Ohio St., 218; In re Assignment of Brammer, 4 Dec., 107; 2 N. P., 169; 1 Jones on Mort., section 615; Lewis v. Anderson, 20 Ohio St., 281; Copeland v. Manton, 22 Ohio St., 398; Swan’s Tr. (13 ed.), 572; Oxford Bank v. Haynes, 8 Pick., 423; Roxborough v. Messick, 6 Ohio St., 448; Eaton v. Davidson, 46 Ohio St., 355; Story on Partnership, section 134; Peterson v. Roach, 32 Ohio St., 374; Bank v. Sawyer, 38 Ohio St., 339; Page
      v. Thomas, 43 Ohio St., 44; Parsons on Partnership, 344; Summer v. Hampson, 8 Ohio, 365; Story on Partnership, 97; Jones on Chat. Mort., 45, 186; Thompson v. Spittle, 102 Mass., 207; 49 Ill., 28; 1 Jones on Mort., 120; Insurance Co. v. Carnahan, 63 Ohio St., 258.

      Mr. George Fritz and Messrs. Straman & Malone, for defendant in error, cited and commented upon the following authorities:
    17 Am. & Eng. Ency. Law, 1157, 1158; Anketel v. Converse, 17 Ohio St., 11; Williams v. Englebrecht,. 37 Ohio St., 383; Freeman v. Freeman, 17 N. J. Eq., 44; Olcott v. Tioga Ry. Co., 40 Barb., 179; Tannahill v. Tuttle, 3 Mich., 104; Cross v. Carstens, 49 Ohio St., 548; Atkinson v. Jordan, 5 Ohio, 289; Gwin v. Selby,. 5 Ohio St., 96; Sigler v. Bank, 8 Ohio St., 511; Francisco v. Ryan, 54 Ohio St., 307.
   Shauck, J.

The record shows that in the trial court much consideration was given to questions of law and fact supposed to be material to the determination of the relative rights of the mortgagee and the-surviving partner in the chattels of the late firm. In orderly inquiry it seems that first consideration should be given to questions which must determine-whether either of them had any rights therein. There is no merit in the claim of Mrs. Gerding that she had acquired possession of the chattels after the dissolution of the firm and before the commencement of this, action. Her petition alleges the possession of the-surviving partner, and that had continued without change from the dissolution of the firm. Assuming in her favor all that can be claimed from the record, she took a mortgage executed by the individual members of a firm when it was involved in indebtedness, the mortgage embracing all of the chattels which it used in the transaction of its business. The chattels were left in its possession for sale and for the general conduct of the business in which it had been engaged, and the mortgage was given to secure the note of one of the members, which in fact and law represented only his individual indebtedness. That the mortgage is void as to creditors, because of the power in the mortgagors to sell the chattels described, is established by numerous cases. Collins v. Myers et al., 16 Ohio, 547; Freeman, etc., v. Rawson, 5 Ohio St., 1; Harmon v. Abbey, 7 Ohio St., 218. It is elementary that a surviving partner is entitled to the possession of all the assets of the partnership for the purpose of devoting them to the discharge of its liabilities. Although with respect to a surplus which may remain after these liabilities are discharged he is a debtor of the deceased partner’s executor; until their demands are satisfied he holds the assets as a trustee for the partnership creditors. Gray v. Kerr, 46 Ohio St., 652. These indisputable propositions are sufficient to determine the case, for, assuming that the mortgage was effective to devote the individual interests of both partners in what might remain of the assets after the payment of the debts to the payment of the note described, being void as to creditors, it was. ineffectual to defeat the possessory right of Enck as the trustee of the partnership creditors. At thé commencement of the action the possession of the chattels, was rightfully in the surviving partner for the purpose indicated, and upon the appointment of the receiver such possession passed rightfully te him. Whether anything may remain to any of the parties to the mortgage can be determined conclusively only after administration by the receiver. But that result seems so improbable that we do not consider the questions which engaged the attention of the trial court.

The judgments of the circuit and common pleas courts should be reversed, the original petition dismissed, and the cause should be remanded to the court of common pleas for administration by the receiver of all the assets of the partnership.

Judgment accordingly.

Burket, C. J., Spear, Davis and Crew, JJ., concur.