author: Crew, J.

text:
    Hamilton v. The State of Ohio. Clarke v. The State of Ohio.

      Sale of intoxicating liquors — Indictment under Section 4364-25, Revised Statutes — Effect of Section 60/42, Revised Statutes— As to place where intoxicating liquors are sold — Sufficiency of indictment — Commitment to workhouse until fine and costs are paid — Criminal law.

    1. An indictment under Section 4364-25, Revised Statutes, charging defendant with unlawfully keeping a place where intoxicating liquors are kept for sale as a beverage, if otherwise sufficient in form and allegation, is not demurrable because it contains ' no averment which excludes said defendant from the operation of the proviso in said section contained. Such proviso is no part of the description of the particular offense charged in the indictment.
    2. The provisions of Section 6942, Revised Statutes, neither supersede nor repeal by implication, the penalty clause of Section 4364-25, Revised Statutes.
    3. It is the duty of the court in pronouncing judgment against the accused in a criminal case to pronounce the judgment provided by law, and where a fine is part of the penalty so provided and the court is authorized by law to commit the accused to the workhouse “until such fine and the costs of prosecution are paid, or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or be otherwise legally discharged,”' — a sentence providing and requiring that the accused “shall stand committed to such workhouse until the fine and costs are paid,” without adding thereto the further words of the statute “or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs,” etc., while not wholly void is incomplete and erroneous, and where such sentence has not been executed, it will be reversed.
    (Decided March 24, 1908.)
    Motion for leave to file petition in error to the Circuit Court of Fairfield county.
    The plaintiffs in error in the above entitled cases, were severally indicted by the grand jury of Fair-field county, Ohio, for keeping, within the limits of the township of Walnut in said county and without the limits of a municipal corporation, a place where intoxicating liquors were kept for sale as .a beverage, contrary to the provisions of Section 4364-25, Revised Statutes. The sufficiency of each of said indictments was duly challenged by a motion to quash and by demurrer, both of which were overruled by the court and the indictments held to be sufficient. The defendants having each entered a plea of not guilty were severally tried, and a verdict of guilty was returned by the jury against each of them. Thereafter, on behalf of each a motion in arrest of judgment, and for a new trial, was filed and overruled, and thereupon the defendants were each sentenced by the court, to be imprisoned in the workhouse in the city of Columbus, Ohio, and there kept at hard labor for the period of thirty days, and each was adjudged to pay a fine of one hundred and fifty dollars and the costs of prosecution and to stand committed to said Columbus workhouse until said fine and costs were paid. This judgment and sentence of the court of common pleas was, upon proceedings in error, affirmed by the circuit court. The plaintiff in error in each of the above cases now asks that leave be granted him to file his petition in error in this. court, and upon these applications or motions the cases have been argued and are now submitted.

      Mr. Ben. R. Dolson; Mr. C. A. Radcliffe and Mr. Thos. H. Dolson, for plaintiffs in error.

      Mr. F. M. Acton, prosecuting attorney, and Mr. M. A. Daugherty, for defendant in error.
   Crew, J.

The above cases were submitted and may be disposed of together, the questions involved and the alleged errors assigned being the same in each. The errors relied upon are: I. The insufficiency of the indictment. 2. That the fine imposed was excessive and illegal. 3. That the sentence pronounced by the court was incomplete, unauthorized and erroneous. We shall briefly consider these several assignments in the order mentioned. 1. Is the indictment sufficient? It is claimed that the indictment is fatally defective in that it contains no averment which takes the defendant, or the offense charged, out of the operation of the exception or proviso found in, Section 4364-25, Revised Statutes, under which section the indictment in each of the above cases was found and presented. Said Section 4364-25, so far as its provisions are pertinent to the present inquiry, reads as follows: “It shall be unlawful for any person within the limits of such township and without the limits of such municipal corporation to sell, furnish or give away any intoxicating liquors to be used as a beverage,' or to keep' a place where such liquors are kept for sale, given away or furnished; and whoever sells, furnishes or gives away any intoxicating liquors as a beverage, or keeps a place where such liquors are kept for sale, given away or furnished, shall be fined not more than five hundred dollars, nor less than fifty dollars, and imprisoned in the county jail not exceeding six months; but nothing in this section shall be construed so as to prevent the manufacture and sale of cider, or sale of wine manufactured from the pure juice of the grape, cultivated in this state, nor to prevent [a] legally registered druggist from selling or furnishing pure wines or liquors for exclusively known medicinal, art, scientific, mechanical, or, sacramental purposes; but this provision shall not be construed to authorize the keeping of a place where wine, cider or other intoxicating liquors are sold, kept for sale, furnished or' given away as a beverage.” This statute it will be seen creates and defines two separate and distinct offenses, one “the selling, furnishing or giving away of intoxicating liquors to be used as a beverage,” the other, “the keeping of a place where such liquors are kept for sale, given away or furnished.” The latter is the offense charged against the defendant in each of the above cases, the averment in the indictment being that defendant, between the dates therein named, “knowingly and unlawfully did keep a place where intoxicating liquors to-wit: brandy, whiskey, gin, ale, beer and wine, were then and there, during all of said time, kept for sale as a beverage.” It is manifest we think from the plain terms of the statute itself that the exception or proviso contained therein, can and does, relate and apply only to the sale or furnishing of intoxicating liquors, and not to the keeping of a place. And, that it was the legislative intent that said proviso should be thus limited, and that such should be its sole office and effect, is made perfectly plain we think by the language which immediately follows said proviso, namely: “but this provision shall not be construed to authorize the keeping of a place where wine., cider or other intoxicating liquors are sold, kept for sale, furnished or given away as a beverage.” Thus while under and within certain conditions named in the statute, the selling or furnishing is neither prohibited nor unlawful, yet under no circumstance or condition is the keeping of a place where intoxicating liquors are kept for sale as a beverage, allowed or permitted by said statute. The sole purpose and effect of such proviso is to except and exempt certain specified acts and designated persons, from the operation of the general prohibitory words of the statute against selling or furnishing. Hence it follows that said exception or proviso constitutes no part of the description of the offense charged against the accused in the above cases, and therefore it was neither necessary nor proper that the indictment should contain the negative averments of the statute. 2. Was the fine imposed excessive or illegal? It would seem to be conceded, that if plaintiffs in error were rightfully sentenced under Section 4364-25, Revised Statutes, — the section under which they were indicted, and which itself provides and prescribes the punishment, by way of fine, that may be imposed for a violation of its provisions, — that then said fine is not excessive or illegal. But it is the contention of counsel for plaintiffs in error that the provision of Section 6942, Revised Statutes, that: “A keeper of a place where intoxicating liquors are sold in violation of law shall be fined not more than one hundred nor less than fifty dollars,” etc., supersedes, and by implication repeals, the penalty clause of Section 4364-25, and’ that the only authority that now exists to punish a defendant convicted of violating the provisions of Section 4364-25, must be found in said Section 6942, which latter section provides as follows: “A keeper of a place where intoxicating liquors are sold in violation of law shall be fined not more than one hundred nor less than fifty dollars, or imprisoned not more than thirty nor less than ten days, or both; and upon conviction of such keeper, the place where such liquor is sold shall be deemed to be a common nuisance, and the court shall order him to shut up and abate the same unless he make it appear to the court that he does not then sell liquor therein in violation of law, or gives bond, payable to the state of Ohio, in the sum of one thousand dollars, with sureties to the acceptance of the court, that he will not sell liquor therein in violation of law, and will pay-all fines, costs and damages assessed against him for violation of the laws relating to the sale of intoxicating liquor; and the giving away of intoxicating liquor, or other shift or device to evade the provisions of this section, shall be deemed and held to be unlawful selling.” It is perfectly obvious from the language of the above statute taken as a whole, that the penalty therein prescribed is wholly inapplicable and unappropriate to the-offenses defined in Section 4364-25. Section 6942. contemplates and provides, that upon the giving of a bond the place where the intoxicating liquors are sold may thereafter be maintained and kept open and sales may be made therefrom, for beverage purposes, according to law; while under Section 4364-25, all sales of such liquors, for such -purpose within the prohibited territory are made illegal, and the keeping of a place where such liquors are so kept for sale is absolutely prohibited and forbidden. The offenses defined in the two sections are not the same offenses, nor are the provisions of said sections conflicting or inconsistent. But further, the fallacy of the claim made by counsel for plaintiffs in error becomes at once apparent when we consider, that above Section 6942, although subsequent in position and numerical order to Section 4364-25, was in fact passed and took effect substantially in its present form containing every condition and provision it now contains, more than eight years prior to the enactment of Section 4364-25. (Revised Statutes 1880, page 1644.) It could not therefore operate to suspend or repeal the provisions of a statute not in existence at the time of its enactment. The only chang'e made in Section 6942, by the amendment of March 5, 1896 (92 O. L., 55), was merely to omit therefrom certain provisions found in the original section, that had become inoperative by reason of the repeal of the' statute making it unlawful to sell intoxicating liquors to be drank where sold. It is a well settled rule of statutory construction that in the amendment or revision of statutes, that the mere change of phraseology, or the mere omission of words which are deemed redundant, does not indicate a legislative intent to change the pre-existing law. It follows that the plaintiffs in error were properly punished under the provisions of Section 4364-25, and the fine assessed against each being within the limits of the amount permitted by said section, and much less than the maximum fine thereby authorized, this court cannot say that such fine was either excessive or illegal. 3. Was the sentence imposed by the trial court unauthorized and erroneous ? The view urged in argument by counsel for plaintiffs in error is, that said sentence was unauthorized, and is illegal and erroneous, for the reason that the court was without right or authority to add to the sentence of imprisonment in the workhouse the words, “and there to be kept at hard labor,” and it is claimed that the addition of these words vitiates the entire sentence. We think a sufficient answer to this is, that hard labor is the imperative rule of the workhouse made so by statute, — Section i536-37°> Revised Statutes, — and that a sentence to imprisonment in that institution is necessarily a sentence to imprisonment at hard labor, whether it be, or be not, so designated and expressed in the sentence itself. The addition of the words “at hard labor” does not aggravate or increase the punishment authorized by the statute, and it can hardly be said to be prejudicial error, merely to repeat in the sentence that which the law itself has irrevocably fixed and determined. It is however further contended that said sentence is incomplete and erroneous, in that the defendant is thereby adjudged to pay a fine of $150 and the costs of prosecution and “to stand committed to the workhouse at Columbus, Ohio, until said fine and costs are paid,” without adding thereto the further words of the statute, “or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or be otherwise legally discharged.” That it was error on the part of the court to omit from the sentence the words of the statute last above quoted, must we think be conceded in view of the positive requirement of Section 7319, Revised Statutes, that in pronouncing judgment against a defendant who has been convicted of a criminal offense, “the court shall pronounce the judgment provided by law.” Dillon v. State, 38 Ohio St., 586. The statute under which a workhouse sentence was imposed in the above cases, Section 6801b, Revised Statutes, does not authorize or permit imprisonment in said workhouse until such time as the fine and costs of prosecution shall be actually paid by the person committed, but the judgment or sentence provided by law is, that the court may, in its discretion, order the person convicted, to stand committed to the workhouse until the fine and costs of prosecution are either paid, “or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or be otherwise legally discharged.” The conditions of release being thus clearly expressed in the statute, they become and are a necessary part of every proper sentence imposed thereunder, and while their omission will not necessarily render the sentence wholly void if any part of the punishment imposed is authorized by law, it nevertheless makes such sentence incomplete and erroneous. But it may be said that such error is not prejudicial and that a court if called upon to construe such a sentence can read into it the words of the statute omitted therefrom and thus preserve to a defendant all of his rights. The answer to this is, that a sentence of imprisonment in a criminal case, to be a valid sentence, must in and of itself be definite and complete in all its material terms, and so certain and accurate as to the time of its commencement and proper termination, as that it shall not be necessary for either the prisoner, or the officers charged with its execution to apply to a court to ascertain its meaning. Picket v. State, 22 Ohio St., 405. In other words, to borrow the language of Norris, J., In re Moore, 14 C. C. R., 244, “a man who is compelled to have a law suit to get into jail, ought not, by reason of the uncertainty of his sentence, be compelled to have another law suit to get out.” The materiality and prejudicial effect of the omission from the sentence in the present cases of the statutory conditions of release, becomes apparent, when we consider that under a proper sentence, defendant would be entitled, in discharge of the fine and costs adjudged against him to a credit of sixty cents per day for each day he is confined in said workhouse, while under the sentence as imposed he must, according to its express terms, either pay or remain in prison. A sentence such as the one imposed in the above cases, if enforced according to its terms, might mean to defendant imprisonment for life, inasmuch as a person committed to the workhouse, in default of the payment of fine and costs, may no longer be released or discharged therefrom under the laws providing for the relief of insolvent debtors. Section 1536-370, Revised Statutes. We are of opinion that the sentence of imprisonment pronounced by the court in the above cases is not the one provided and required by law, in that, it does not include therein all the conditions of release prescribed by the statute; such sentence is therefore unauthorized and erroneous and should be reversed. It appearing from the record ' herein that said sentences have not yet been executed, by reason of their suspension pending these proceedings, in error, the cases will each be remanded to the court of common pleas of Fairfield county for resentence according to law.

Motion for leave to file petition in error allovoed and judgments of the circuit court and of the court .of common pleas reversed as to the sentence, and cases remanded to the court of common pleas for resentence.

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


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Webster et al. v. The Pittsburg, Cleveland & Toledo Railroad Company.

      Action for ejectment or to compel appropriation of property — Section 6448, Revised Statutes — Statutes of limitations — Does not begin to run against reversioner or remainderman — Until death of life tenant.

    1. As the right of entry and immediate possession is essential to recovery in an action of ejectment, the statute of limitations does not start to run until the right of entry and possession accrues; and where the real estate is in the possession of a life tenant, such 'statute does not begin to run against the reversioner or remainderman until the death of the life tenant, or until his life estate be otherwise terminated.
    2. No possssion can be deemed adverse to a party who has not at the time the right of entry and possession.
    3. W, a married woman, died in 1872, seized in fee simple of certain real estate, leaving a husband surviving her, and several children, who are her heirs at law. The husband took an estate by curtesy. In the year 1882, the P. C. & T. railroad company, without proceeding to appropriate the right to do so, and without any contract with the owners or any of them, took possession of the premises and constructed its railroad thereon and thereover, and has ever since held possession without title. The life tenant died in 1892, and the heirs commenced this case in the probate court under Section 6448, Revised Statutes, August 14, 1904.

      Held: That the action was not barred by the twenty-one year statute of limitations, and that the statutory bar did not begin to run until the death of the life tenant.
    (No. 10447
    Decided March 24, 1908.)
    Error to the Circuit Court of Trumbull county.

      The plaintiffs in error are the heirs at law of Elizabeth Webster, who owned the premises concerned in this suit. She died intestate in 1872, leaving a husband, Alfred Webster, who took a life estate by curtesy in all the lands of which his wife died seized. He died in 1892, not having conveyed any part of his said estate to any person or corporation.
    In the year 1882, and during the life of Alfred Webster, the life tenant, the defendant in error entered upon and took possession of said lands and constructed its railroad thereon, and has ever since been occupying the same with its roadbed and track and operating trains thereover, and has continuously occupied and possessed said premises for a railroad ever since it first took possession thereof, without having appropriated the right to occupy the same and without any contract with the owner for that purpose or. to that effect.
    In August, 1904, the plaintiffs in error filed in the probate court of Trumbull county their petition under favor of the provisions of Section 6448, Revised Statutes, to compel appropriation by the railroad company. The petition contains the allegations made requisite by said section.
    The railroad company answered, admitting its possession of the premises as alleged, and averred that it had been in open, notorious, continuous and adverse possession of said premises so taken, under a claim of right and title for more than twenty-one years prior to the filing of said petition; and it was admitted in the answer that said company had been operating a line of railroad over the land described. Other averments of the petition were denied.
    For further defense the company set up a tax title which accrued as the result of a delinquent tax sale made by the treasurer of Trumbull county in January, 1879, and that said land not being redeemed, was subsequently conveyed by the auditor to the purchasers and that the railroad company held title under said sale and conveyances. The tax title was attacked by reply, but nothing is claimed for it in this court as it is no longer an issue between the parties.
    Trial was had to a jury in the probate court and a verdict for $800 was returned. Motion for new trial was overruled and judgment rendered on the verdict. The case was taken by the railroad company on error to the court of common pleas where the judgment of the probate court was reversed and the petition dismissed. The plaintiff in error prosecuted error in the circuit court where the judgment of the court of common pleas was affirmed. The case is here on error to reverse the judgments of the circuit and common pleas courts. Further questions in the case are stated in the opinion.

      Messrs. Moore & Craver; Mr. John Schlarh and Mr Charles Koonce, Jr., for plaintiffs in error.
    The delinquent tax list under which the property was sold had not attached thereto the sworn certificate of the treasurer or his deputies as provided by Section 1043, Revised Statutes. Skin

      ner v. Brown, 17 Ohio St., 33; Stambaugh v. Carlin, 35 Ohio St., 209.
    The two lots were not valued as separate tracts in accordance with Section 2729, Revised Statutes. There was no copy of the published notice of tax sale inserted at the foot of the record, or elsewhere on the record as required by Section 2867, Revised Statutes. Magruder v. Esmay, 35 Ohio St., 221.
    The plaintiffs in error contend that the statute of limitation did not begin to run against them until the death of the life tenant in 1892; that the action to compel appropriation is but a substitute for an action in ejectment; and that since, in ejectment, the statute does not begin to. run against a reversioner until the death of the life tenant, and is not barred until twenty-one years have elapsed from his death and the commencement of the paramount estate, so here the plaintiffs would not be precluded from prosecuting an action under Section 6448, Revised Statutes, until twenty-one years had elapsed after the death of the life tenant.
    In this jurisdiction the rule is too well established to ’admit of discussion that the statute of limitations does not begin to run against the remainderman or reversioner, in favor of a trespasser, or one claiming under the life tenant, until the death of the life tenant. Holt et al. v. Lamb et al., 17 Ohio St., 374; Carpenter v. Denoon, 29 Ohio St., 379; Koltenbrock v. Cracraft, 36 Ohio St., 584.
    It is equally well .settled in Ohio that the right .to prosecute ejectment against a railroad company (unless the owner has been by his own acts estopped from prosecuting such action) exists for twenty-one years from and. after the commencement of the adverse possession by the railroad; and that the remedy to compel the appropriation of the property exists for a like time, and is governed by the same statute of limitation. Railroad Co. v. O’Harra, 48 Ohio St., 343; Railroad Co. v. Perkins, 49 Ohio St., 326; Fries v. Railway Co., 56 Ohio St, 135.
    If, as was held in the cases cited, the remedy pursued in this case is governed by a statute prescribing a limitation upon the commencement of actions to recover possession of real estate, how can it logically be said that the statute would commence to run in such action against the reversioner until he was entitled to demand possession of such property.
    Where a railroad company during the continuance of the life tenancy takes possession of the estate, either by conveyance from the life tenant or otherwise, and constructs its public railroad thereon, the statute of limitations does not begin to run against the remainderman or reversioner until the death of the life tenant, and the right of action of the owner of such dominant estate is not barred-until twenty-one years after the termination of the life tenancy. Hope v. Railroad Co., 79 Va., 283; Railway Co. v. Reynolds, 69 S. Car., 481, 48 S. E. Rep., 476; Railroad Co v. Vaughn, 206 Ill., 234, 69 N. E. Rep., 113.

      Messrs. Arrel, Wilson & Harrington, for defendant in error.
    It is clear that the life tenant could not maintain an action to recover compensation for damages done by a stranger to the reversion or inheritance, because he has no interest therein. How can possession or the right thereto be material to the maintenance of an action to recover for injuries done to the reversion or inheritance? Again, the action had no relation whatever, to either possession, or the right thereof. A reversioner may maintain a suit in equity to enjoin the life tenant from committing waste on the land, and this being so, may he not maintain a like suit to enjoin a stranger from committing acts materially and substantially injurious to his reversion or inheritance? If a stranger to both the reversioner and the life tenant should enter upon the land and do wrongful acts, he surely might be enjoined in a suit in equity brought for that purpose by the reversioner in the one case, and in the other, would be subject to .an action at law, brought by the reversioner to recover compensation for the injuries done to the reversion or inheritance. Against such stranger the life tenant might maintain a suit in equity to enjoin the wrongful acts, or if the acts were completed, he might maintain an action at law to recover compensation, provided the wrongful acts of the stranger injured in any wise materially and substantially his estate in the land. What reason exists for postponing the right of the reversioner to bring such suit or such action until the determination of the life tenant’s estate in the land?
    The court, we think, on examination, will find ample support for the above proposition in the following authorities: Jordan v. Benwood, 57 Am. St. Rep., 859, 42 W. Va., 312; Bass v. Railroad Co., 39 L. R. A., 711; Allen v. DeGroodt, 14 Am. St. Rep., 626; Tinsman v. Railroad Co., 1 Dutch., 255, 64 Am. Dec., 415, 26 N. J. L., 148; Railroad Co. v. Boyer, 13 Pa. St., 497; 3 Sutherland on Damages, 392; Dutro v. Wilson, 4 Ohio St., 101; Gorrill v. Railway Co., 4 O. C. C., 398; Railroad Co. v. Williams, 35 Ohio St., 168; McAllister v. Hartsell, 60 Ohio St., 69; Gluck v. Mayor of Baltimore, 48 Am. St. Rep., 515; Lessee of Thompson’s Heirs v. Green, 4 Ohio St., 216; 24 Am. & Eng. Ency. Law, (2 ed.), 391 Arneson v. Spawn, 39 Am. St. Rep., 783.
   Price, J.

The plaintiffs in error are the children and heirs at law of Elizabeth Webster, who died in the year 1872 seized in fee'simple of the lands involved in this proceeding. Alfred Webster, her husband, survived her, and under the statute then in operation, he became a tenant for life by curtesy in the entire premises. Pie died in the year 1892 and his life estate terminated. It was then that these heirs came into their own, and were entitled to enter upon and take possession of the estate in fee. Until the termination of the life estate no right of entry existed in the heirs, for the tenant by curtesy was entitled to possession and full control of the premises, barring ■ waste and other acts which might work a forfeiture of his estate, and the general rule is, that no cause of action accrues to the remainderman until the death of the life tenant, or other termination of the precedent particular estate, and as a right of immediate possession is an indispensable requisite to maintaining an action of ejectment, it follows that-suit cannot be brought by the owner of the remainder so long as the precedent estate exists.

This rule is recognized in Holt et al. v. Lamb et al., 17 Ohio St., 374; Carpenter v. Denoon et al., 29 Ohio St., 379; Koltenbrock v. Cracraft, 36 Ohio St., 584. This doctrine becomes important in this case, because when the heirs gained the right of entry by • the death of their father, the life tenant, the railroad company was in possession of that part of the lands now in controversy with a railroad fully constructed and in operation thereover, and its possession began in the year 1882, ten years before the termination of the life estate, and has been continuous since that to the present time. It did not obtain possession by appropriation proceedings under the statute, nor does it claim it by virtue of any contract with the life tenant or any of the remaindermen. The proceeding now under review was commenced in the probate court on the 16th day of August, 1904, about twelve years after the death of the tenant by curtesy, and hence the' period of the statute of limitations against an action of ejectment by the heirs has not run.

It follows, that until the period has fully run, the railroad company has been and is now wrongfully in possession. The only color of title asserted aside from the statute of limitations, is title acquired under a void tax sale, under which it is not now claimed the company holds any valid title. The tax title, according to the pleadings, resulted from the delinquency of the life tenant in not paying the taxes charged against the premises, — a duty made incumbent on him by the statute, and such delinquency did not forfeit the estate of the remaindermen. See the cases above cited. Other substantial facts preceded and attended the tax sale which made the sale invalid, and as no reliance is now placed upon it, we will not pursue that subject further.

That out of the way, we see that the railroad company had no title when it took possession, and had none when the action was commenced in the probate court as against the heirs, for not until the last hour of the twenty-one years of limitation has run, could a plea of such statute defeat a recovery by them in an action of ejectment. The execution of the judgment against an established railroad is for later consideration.

But it is said the case under consideration is not an action of ejectment, but one under Section 6448, Revised Statutes, to compel appropriation by the company, and such is the character of the suit. With this assertion goes the statement, that the heirs though out of possession and also out of any right of possession until the death of the life tenant, could have instituted the suit under consideration at any time after the railroad company wrongfully took possession in 1882, and therefore the statute of limitations had fully run when the present action was commenced — August 16, 1904. This position means, that if the heirs had brought ejectment, the plea of the statute would not be good, but if they elected to resort to the remedy afforded by Section 6448, supra, the statute applies. It is further argued, that the remaindermen could have enjoined the railroad company from constructing its road on the premises just as they could have enjoined cutting timber or otherwise committing waste by the life tenant or a stranger. We cannot assent to the broad statement. Circumstances might have existed and the situation of the parties might have been such that a court would decline to enjoin. The life tenant may have colluded with the railroad company so that it gained possession. But injunction is a preventive remedy and its omission does not waive or condone the trespass when committed. It is not good argument here to say that because the heirs were silent and did not endeavor to prevent the company from taking possession and building the road, that they have lost their estate or right to reclaim it. Authorities hereafter cited or quoted refute the proposition.

And as to the other point, that they could have brought suit to compel appropriation under Section 6448, without waiting the termination of the life estate, we remark, that strictly speaking, the possession of the railroad company was not adverse to the heirs, but adverse to the life tenant while he lived.

Besides, it is said that the remedy provided by this section of the statute is a substitute for the right to recover possession and should be governed by the bar allowed in ejectment. Railroad Co. v. O’Harra, 48 Ohio St., 353. The heirs being out of possession, owned not the fee, but the fee in remainder. They were not required to procure the joinder of the life tenant in a suit to compel appropriation. As before stated, the life tenant may have sold his permission of possession to the railroad company; or he may have colluded with it in some manner whereby it took possession. Without the united action of tenant and the heirs, the questions of appropriation could not have been fully settled. No obligation rested upon the heirs to convert the life tenant into a co-plaintiff in an action under the statute. They could rely on enforcing their rights when the door should be fully open for their relief.

It is said by Warvelle in his work on Ejectment, Section 452: “As a’ general rule of uniform observance, no possession of lands can be deemed ■ adverse to a party who has not, at the time, a right of entry and possession. For this reason a disseizin of a life tenant, or the owner of any particular estate, has no effect upon rights held in remainder or reversion. Such disseizin imposes no obligation upon the remainderman or reversioner to enter, nor will the statute commence to run against them until the termination of the particular estate, no matter how long the tenant thereof -may have been disseized.” The author cites Devyr v. Schaefer et al., 55 N. Y., 446; Orthwein v. Thomas, 127 Ill., 554; Wallingford v. Hearl, 15 Mass., 471; Jackson v. Johnson, 5 Cowen (N. Y.), 96; Sand v. Church, 152 N. Y., 174. In a note on p. 506 of Warvelle on Ejectment is an illustration and summary of Orthwein v. Thomas, supra, as follows: “Thus, children inheriting land from their mother, subject to their father’s rights as tenant by the curtesy, are not guilty of laches in remaining silent for more than thirty years, during which time their father was alive, and he and his grantees laid out and platted a town on such land and were in possession thereof; for such possession was lawful and consistent with the father’s estate, and neither the children nor the grantees had any right to disturb it.”

The railroad company was not disposed to move in proceedings to gain title and possession, and can it be heard to say that because the heirs kept silent until after the death of the life tenant, it will add the years of the life tenancy after the wrongful entry to the years since its termination in order to defeat the present remedy? Again we say, the possession of the company during the life tenancy was adverse to the tenant rather than to the remaindermen, and the time should not be so computed,' and it is of the very life of the statutory bar that the possession by the railroad company was, for twenty-one years next before suit, continuously and openly, adverse to the heirs. Such possession may have been open, notorious and continuous for the statutory period, yet if it was not also adverse, it availeth nothing. This is the counterpart of the first proposition discussed, namely, that the heirs not having a right of entry during the existence of the life estate, could not have brought ejectment against the company during that period.

We will reinforce the second proposition by noticing what was decided in the foregoing cases. In Jackson v. Johnson, 5 Cowen, 75, it is held, “that the statute of limitations does not run ^against remaindermen or reversioners, during the continuance of the particular estate. It was aimed at those guilty of laches in omitting to enter, or bring actions, which cannot be said of remaindermen or reversioners, who have no right in law to do either.” In Wallingford v. Hearl, supra, the following is stated as the law of the case by Parker, C. J.: “The demandant’s right of entry accrued on the death of the tenant for life, and he had twenty years by the statute to preserve his estate by entry. He entered in fact within one year after his title accrued, that is after the termination of the life estate. It is said that he might have entered before in consequence of the disseizin of the tenant for life. If he might, the la^y imposed no obligation upon him to do so. He might be utterly ignorant of the disseizin, notwithstanding the visible occupation of the disseizor, for he might well suppose that the tenant had entered into a contract with her, who was seized of the freehold. It is settled in 'the case of Wells v. Prince, 9 Mass., 508, that although the reversioner may enter before the death of the tenant for life, if she refuse to enter, yet that he may waive that right, and enter after her death * *

In Devyr v. Schaefer et al., supra, it is held on page 446: “No possession can be deemed adverse to a party who has- not at the time the right of entry and possession.” In Orthwein v. Thomas et al., supra, p. 555, it is held that, “until the death of the life tenant, no statute of limitations will begin to run against the remainderman, and laches will be imputed to him only from the time his right of entry accrues.” A like principle is laid down in Sand v. Church, supra. See also Borders v. Hodges, 154 Ill., 498. See also Carpenter v. Denoon et al., 29 Ohio St., 379. These are authorities selected from many others of similar import which, as we think, establish the proposition that the possession of the railroad company did not become adverse to the rights and title of the plaintiffs in error until the death of the life tenant, their father, and that not until that time did. the statute of limitations begin to run against them; and we think that this rule must apply to the proceedings under review.

We may look at this case from another viewpoint. The railroad company took possession without contract and without appropriation. It is not claimed here that any owner of the estate even consented to the possession, and the company gained no advantage by the mere silence of the owners. It is said in Railroad Co. v. Perkins, 49 Ohio St., 330, that “a man does not acquiesce in law by merely neglecting to assert his rights. No acquiescence in this sense affects his right of-action short of the period prescribed for its commencement.” And again, on page 332, it is said, “it 'is a mistake to say that by the wrongful entry of the company the right of the owner to his land is turned into a mere chose in action for the value of it.” The only obstacle to the remedy by ejectment lies in the efficacy of the ejectment writ, and not a denial of the right to its enforcement. In many, perhaps in most cases where railroad companies have constructed their railroads on lands of another without right, their occupation and the work constructed on the premises may be such that, while the company may be ejected, it would leave its property behind to plague the landowner. Besides, the interruption of public travel and business would be a serious consideration in ordering an ouster. So we have the provisions of Sections 6448 and 6449, Revised Statutes. The last clause of the latter section expressly provides, “this section shall not be construed to impair or lessen in any manner the right of the owner or owners * * * may have to proceed against the corporation as in all other cases of the unlawful entry upon lands.” Therefore, where the writ of ejectment may be impracticable for reasons above given, or others sufficient, the owner may select the remedy under the above .statute, as has been done in this case. And this court has held in Railroad Co. v. O’Harr a, 48 Ohio St., 343, that proceedings to compel appropriation are not barred by lapse of less than twenty-one years from the time of such occupation' by the company. The period is not thus limited as against one who is a remainderman or a reversioner and has no right of entry or possession during the existence of a life estate. As already stated, as to such remaindermen or reversioners, the statute does' not start until the termination of the particular estate. On page 353 of above case, Minshall, J., says: “The remedy in such case is a substitute for an action to recover the possession, and we fail to perceive why it should be barred in any shorter period than an action for that purpose * * * .”

In Fries v. Railway Co., 56 Ohio St., 135, the same rule as to the .statutory bar is again asserted, as to proceedings to compel appropriation, and what we have said as to when the statute begins to run is here applicable also. These and other Ohio cases are not in conflict with the views expressed in this case, but are entirely consistent therewith.

There is another point raised by defendant in error. It is provided in Section 6448, supra, “such owner or owners or either of them * * * may serve notice in writing upon the corporation in the manner provided for the service of summons against a corporation, to proceed under this chapter to appropriate the lands, and on failure of such corporation for ten days so to proceed, said owner or owners * * * may file a petition in the probate court of the proper county setting forth the fact of such use or occupation by the corporation, that the corporation has no right, legal or equitable thereto * * * that the 'notice provided in this section has been duly served; that the limitation under the notice has elapsed, and such other facts,” etc. The petition contained all these statutory facts, but it is claimed that the plaintiffs failed to prove the service of the notice preliminary to filing their petition. The printed record is silent upon the subject. The notice, if one was served, is not brought into'the record before us, and it is argued that having failed to show the service of such notice the plaintiffs failed to make a case under the statute. Before deciding the question, it is well to see what the answer contains. The railroad company admits that it is a railroad corporation authorized to make appropriation of private property, and that it is in possession of the premises indicated, and avers that “it has been in open, notorious, continuous and adverse possession of said part of said lots, under a claim of right and title, for more than twenty-one years prior to the beginning of the above entitled action; admits that it has been operating a line of railroad over that part of said lots in its possession as aforesaid.”

The answer then proceeds to deny “each and every statement, allegation and averment in said amended petition contained, not herein expressly admitted to be true, and says that the same are false and untrue.”

Next, the company sets out in detail that the premises were sold at delinquent tax sale in January, 1879, and that in due time a deed was made to the purchaser for the lands so sold, and that the company holds under said tax deed, and in connection therewith again pleads the statute of limitations. The reply attacks the validity of the tax deed.

We do not believe that the failure to prove the service of the notice deprived the court of jurisdiction to proceed with the case, after the above issues had been joined. The point was not raised, as we can discover, at any stage of the trial.' When the plaintiffs rested their case, no mention was made of the absence of such proof, and the company proceeded and put in its evidence. The attention of neither court nor counsel was called to the absence of proof of the notice after the defendant rested. Nor was the court requested to instruct the jury upon the subject, and we think the point is too late in arrival to justify a reversal of the judgment of the probate court on that ground; Neither the circuit court nor the court of common pleas seems to have spoken or ruled on that question.

We conclude that the judgments of the circuit and common pleas courts should be and they are reversed; and the judgment of the probate court is affirmed.

Judgment reversed.

Shauck, C. J., Summers and Spear JJ., concur.


author: Shauck, C. J.

text:
    Weatherhead v. Ettinger.

      Authority of real estate broker — To execute contract of sale for third parties.

    A real estate broker is without authority to execute a contract of sale which shall be binding upon one who places real estate in his hands for sale unless such authority is specially conferred.
    (No. 10471
    Decided March 24, 1908.)
    Error to the Circuit Court of Cuyahoga county.
    Ettinger brought, suit against Weatherhead in the court of common pleas of Cuyahoga county' to recover damages resulting from his refusal to convey lot No. 9 in the village of Glenville in Cuyahoga county, alleging that he was bound to make such conveyance by the terms of a written contract executed in his behalf by one Lewis H. Wain, his agent, thereunto lawfully authorized. The defendant denied all the allegations of the petition. Upon the trial the plaintiff offered in evidence a written contract of the purport alleged signed, “Lewis H. Wain, agent for Albert J. Weatherhead,” and the instrument included an acknowledgment of the receipt of $50.00 on account of the purchase. For the authority of Wain to make a contract binding upon Weatherhead, plaintiff resorted to parol evidence which tended to show that Wain was a real estate broker in Cleveland, that he and Weatherhead frequently met at luncheon and upon one such occasion the latter expressed to the former a wish that he would sell this lot for the sum of $3,500.00. Upon a later occasion Wain reported that he was making progress toward finding a purchaser, to which Weatherhead answered, “Very well.” On the day following he executed the contract counted upon in the petition at the • price named, accepted $50.00 on the purchase and gave the receipt and contract referred to. Within a day or two he delivered to Weatherhead a copy of the contract but not the $50.00 paid on the purchase. Weather-head said he was not ready to convey and within a few days announced that he would not convey, and paid to Wain his commission as broker. In the court of common pleas there was a judgment in favor of the defendant on a verdict which the court had directed the jury to return in his favor. The circuit court being of the opinion that the evidence tended to show the state of facts upon which Ettinger was entitled to recover reversed the judgment of the court of common pleas and remanded the cause to that court for a new trial.

      Messrs. Kline, Tolies & Golf, for plaintiff in error.
    It is a well-established principle of the law governing the relations between a real estate broker and his client, that the authority of a real estate broker authorized or employed to sell land only extends to finding a purchaser who will be acceptable to the owner and will enter into a contract of purchase with him at the price fixed, and that he cannot bind his principal by signing a contract, unless the owner makes him more than a broker by giving him express authority to enter into such contract, in which event the agent would cease to be merely a broker, and become an attorney. Coleman v. Garrigues, 18 Barb., 60; Glentworth v. Luther, 21 Barb., 145; Morris v. Ruddy, 20 N. J. Eq., 236; O’Reilly v. Keim, 34 Atl., 1073; Duffy v. Hobson, 40 Cal., 240; Rutenberg v. Main, 47 Cal., 213; Campbell v. Galloway, 148 Ind., 440; Furst v. Tweed, 93 Ia., 303; Ballou v. Bergvendsen, 9 N. Dak., 286; Brandrup v. Britten, 92 N. W. Rep., 453; Halsey v. Monteiro, 92 Va., 581; Donnan v. Adams, 71 S. W. Rep., 580; McCullough v. Hitchcock, 42 Atl., 81; Carstens v. McReavy, 25 Pac., 471.

      Mr. W. B. Neff and Mr. W. D. McTighe, for defendant in error.
    Upon the subject of the power of an agent to bind his principal, in respect to sales of real estate, we desire to cite the following authorities: Smith v. Keeler, 151 Ill., 518; Kline v. Lindley, 30 Atl., 1063; Rosenbaum v. Belson, 2 L. R., Ch. Div. (1900), 267; Johnson v. Dodge, 17 Ill., 433; Vanada’s Heirs v. Hopkins’ Admrs., 19 Am. Dec., 92; Pringle v. Spaulding, 53 Barb., 17; Matherson v. Davis, 2 Caldwell (Tenn.), 443; 4 Am. & Eng. Ency. Law (2 ed.), 962.
   Shauck, C. J.

The substantial question in the case is, did the evidence tend to show that Wain had authority to make a contract binding upon Weatherhead for the sale of the lot? The significant fact of which all parties to the transaction were aware was, that Wain was a real estate broker. His business was to find intending purchasers and bring them to those who had real estate for sale, and who had employed him for that purpose. It was in that capacity that he was approached by Weatherhead and that the conversations between them were carried on. The subject of executing a contract of sale on the owner’s behalf with one who might desire to become a purchaser was not considered or mentioned in any of the conversations. The conversations were such only as would naturally occur between an owner of property desirous of selling it and a broker engaged in the business of finding purchasers. If it should be conceded that by custom a real estate broker might, without special and express authority, execute a contract of this character binding upon the qwner who placed his land in his hands for sale, the attempt to show that such a custom existed failed utterly in the present case. It is in accordance with common understanding that one soliciting the services of a real estate broker, when nothing more appears, reserves to himself the power to conclude the sale. A reference to the cases cited in the reporter’s abstract of the briefs will show that the cases are generally in accordance with this view. It is to be observed that the question is not affected at all by any of the cases which determine the right of the broker to compensation. That obligation Weatherhead has conceded in the present case, and he has discharged it. While some support to the opposite view may be derived from two of the cases cited in the brief of the defendant in error, they must be regarded as in conflict, not .only with the current of authority upon the subject, but with the common understanding of business men. There was, therefore, no original authority in Wain to execute the contract.

But it is said that if there was not original authority given to Wain to execute the contract, the contract was subsequently ratified by Weather-head. The case presents no element of ratification. The money delivered to Wain on account of the proposed purchase was not accepted by Weather-head, if indeed he was informed of the fact that it had been paid to Wain. Weatherhead did nothing but retain the copy of the contract tendered to him for brief and reasonable consideration, and then exercised his right to decline to execute it. The position of Ettinger was in no way changed in consequence of anything that was done or omitted by Weatherhead.

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

Price, Crew, Summers,- Spear and Davis JJ., concur.


author: Davis J.

text:
    Errett, Guardian, v. Howert.

      Ward may bring action against guardian — To review settlement, when — Limitations of time for bringing actions — Sections 6289 and 4982, Revised Statutes.

    Every settlement made in the probate court by a guardian is final between the guardian and ward, unless an appeal be taken therefrom to the court of common pleas or the same shall be opened and reviewed for fraud or mistake by civil action in the court of common pleas, commenced within two years after the ward shall arrive at full age. Section 6289, Revised Statutes, fixes the limitation for such an action and not Section 4982, Revised Statutes.
    (No. 10481
    Decided April 14, 1908.)
    Error to the Circuit Court of Crawford county.
    The material facts are stated in the opinion.

      Mr. J. W. McCarron and Mr. George B. Okey, for plaintiff in error.

      Mr. Thomas Beer and Mr. W. J. Geer, for defendant in error.
   Davis J.

Several points of controversy are developed in the record of this case; but in our opinion the determining factor is a single question as to the application of the statute of limitations.

The defendant in error began this action in the court of common pleas, by petition filed on August 13, 1902, thirteen months after discovery of the alleged frauds and more than two years after she became of age. In this action the defendant in error seeks to set aside, on the ground of fraud, certain partial settlements and the final settlement made by her guardian in the probate court. The guardian demurred to the petition on the ground that the action was not brought within the time limited for the commencement of such actions. The court of common pleas dismissed the petition and rendered judgment for costs against the plaintiff below, defendant in error here, and on appeal the circuit court overruled the demurrer to the petition and gave judgment against the guardian as prayed.

It is argued in support of the judgment rendered by the circuit court, that the general statute of limitations governs this case and that therefore, notwithstanding the provisions of Section 6289, Revised Statutes, the right to commence this action could not be barred until the expiration of four years from the discovery of the fraud.

Before the amendment of the statute into the form now embodied in Section 6289, Revised Statutes, this court held that every settlement made by a guardian is final between the guardian and ward, “unless an appeal is taken therefrom, or the settlement is opened, in accordance with the provisions of this section.” Woodmansie v. Woodmansie, 32 Ohio St., 18. It is true that the controversy did not arise in the exact form that it does in this case; but the essential question was the same as here, namely, are the settlements conclusive between the guardian and ward unless they are “opened in accordance with the provisions of this section?” The conclusion, which was reached in the cited case after a careful review of the statutes relating to this subject, necessarily means, to quote from the statute, that there is saved to the ward “the right of opening and reviewing such settlement for fraud or manifest mistake * * * at any time within two years after said ward shall arrive at age”; and that if the settlement be not opened within the time thus named it is final.

When Woodmansie’s case, supra, was decided, it might have been much more plausibly argued than it is now, that a suit in equity might be brought in the common pleas court at any time within four years from the discovery of the fraud. The statute then provided that the settlement might be opened for fraud or mistake “by petition filed in the form prescribed in the code of civil procedure of this, state, in the probate court,” etc. Since the probate court has only such jurisdiction as is provided by statute, it might have been argued that there were two concurrent remedies for the fraud, one in equity in the common pleas court within four years 'from the discovery of the fraud and one under the statute in the probate court within two years after the ward should arrive at age. Nevertheless, in Woodmansie’s case this court held that the guardian’s account was conclusive between the guardian and ward, unless opened in accordance with the provisions of the statute, which is now embodied in Section 6289.

But the line of argument presented for the defendant in error is absolutely untenable under the statute as it now reads. . Section 6289, Revised Statutes. The right of opening and reviewing such settlements must now be made effective by “civil action in the court of common pleas;” and whether the action be at law or in equity it is a civil action. Section 4971, Revised Statutes. Now it is provided, Section 4976, Revised Statutes, that: “Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues'; but where a different limitation is prescribed by statute, that shall govern.” By Section 6289 the ward must bring his civil action on the- ground of fraud or mistake within two years after arriving at full age. By Section 4976 every civil action upon the same ground and seeking the same relief must be governed by the particular statute.

“A wide distinction exists between pure statutes of limitation and special statutory limitations qualifying a given right. In the latter instance time is made an essence of the right created and the limitation is an inherent part of the- statute or agreement out of which the right in question arises, so that there is no right of action whatever independent of the limitation. A lapse of. the statutory period operates therefore, to .extinguish the right altogether.” 19 Am. & Eng. Ency. Law (2 ed.), 150. See also Chinn v. Trustees, 32 Ohio St., 236; Columbus, Springfield & Cincinnati Railroad Co. v. Mowatt, 35 Ohio St., 284; Fisher v. Tuller, 122 Ind., 31; Bartlett et al. v. Manor et al., 146 Ind., 621, 624-629.

Reversed and judgment for plaintiff in error.

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


author: Spear, J.

text:
    The Interstate Life Assurance Company v. Raper.

      Rule requiring presentation of journal entry to adverse counsel— Will not apply, when — Power of common pleas to vacate judgment after term — Section 5354, Revised StaUites — Burden upon mover to show irregularity — Evidence insufficient, when.

    1. A rule of the court of common pleas requiring counsel for the party in whose favor a judgment is rendered to present a journal entry to counsel for the adverse party for his approval or rejection before giving the same to the clerk for entry does not apply to a case where no counsel has in any way indicated an appearance in that court, and where such adverse party is in default. And the rule is the same although the cause was appealed to the common pleas by the adverse party who gave an appeal bond therefor.
    2. The power of the court of common pleas to vacate its judgment after term upon motion is controlled by section 5354, Revised Statutes. And where the complaint is of irregularity in obtaining the judgment, the burden is on the mover to prove that the alleged irregularity occurred at or before the taking of the judgment.
    3. Where the evidence does not tend to show any irregularity at or before the taking of the judgment, but only that afterwards counsel for plaintiff out of court expressed to counsel for defendant a willingness to have the judgment vacated provided an answer showing a good defense were presented to him, but before the presentation of any such answer the counsel’s client gave him positive instructions not to consent to such vacation, and for that reason he refused, a case is not made authorizing the court to order a vacation of the judgment.
    (No. 10575
    Decided April 14, 1908.)
    Error to the Circuit Court of Montgomery county.
    Facts are stated in the opinion.

      Messrs. Fitzgerald & Sprigg, for plaintiff in error.
    We contend that a judgment ought not to be vacated arbitrarily even during the term it was rendered. Burrell v. Insurance Co., 15 Ohio Dec., 303.
    How much more restricted is the power of the court after the term has closed, will appear from the following cases. Huntington & McIntyre v. W. N. Finch & Co., 3 Ohio St., 445; Thatcher v. Dickinson, 3 O. C. C., 144.
    None of the matters alleged in the motion constitute an “irregularity in obtaining” the judgment. Commissioners v. Cambridge, 7 O. C. C., 72.
    Has the court or plaintiff’s counsel done anything wrong? No sign was given that any attorney had been retained in the common pleas court to defend the case. On the contrary, the attorney who appeared in the justice’s court had told plaintiff’s counsel that he was not then employed. An entry of a default judgment cannot be presented to opposite counsel when none such exists.
    The reason of the rule requiring judgment entries to be presented to opposite counsel is to avoid mistakes in reciting the court’s decision and so that if there be any dispute it may be referred to the court. But here the reason fails and cessante ratione, cassat lex. The judgment by default was a matter of right which the plaintiff was entitled to by law.
    A judgment will not be set aside for the negligence of the attorney of the defeated party. Williams v. Heisley, Exr., 1 Cleve. L. Rep., 196, 4 O. Dec. Re., 273; Gordon v. Cowle, 1 Cleve. L. Rep., 18, 4 O. Dec. Re., 92; Blood v. Beadle, 65 Ala., 103; Smith v. Tunstead, 56 Cal., 175; Kreite v. Kreite, 93 Ind., 583; Jones v. Leech, 46 la., 186; Irby v. Henry, 16 S. C, 617; Kuehne v. Goit, 54 Ill. App., 596; Davis v. Shaver, Admr., 61 N. C., 18.
    No brief was ■ submitted for defendant in error.
   Spear, J.

The real question involved relates to the power of the court of common pleas to vacate its own judgment on motion after term. The essential facts follow: Samuel E. Raper was sued by The Interstate Life Assurance Company in a justice's court of Montgomery county upon two promissory notes and a bank check. At the trial, January 6, 1906, he appeared and being called as a witness admitted the execution of the notes and check, but interposed no defense. Judgment was thereupon rendered for the plaintiff. Ten days thereafter defendant gave bond for appeal to the common pleas. February 19, 1906, plaintiff filed its petition on appeal in that court. No appearance by any counsel having been entered, and no answer or other pleading filed, but defendant being in default, on Monday, March 26, 1906, on a regular day of the court at the regular time, in open court, judgment was entered by default for the plaintiff. No other action was taken or was asked of the court in the cause at that term, which term adjourned on March 31.

On April 21, following, being a day of the next term, the defendant filed a motion to vacate the judgment “for the reason' that there was irregularity in obtaining said judgment.” No action having been taken by the court on this motion, on May 2, following, a further motion was filed as follows:

“Comes now the defendant, Samuel E. Raper and moves the court to vacate the judgment obtained against him and in favor of the plaintiff on the 26th day of March, 1906, in the above entitled cause for the reason that there was irregularity in obtaining said judgment against him in this, to-wit:

“First. Because said judgment was obtained against defendant and in favor of the plaintiff in this cause on the 26th day of March, 1906, being the last day for the taking of judgments’ at the January term, 1906, the taking of which judgment of said date being contrary to the regular course of procedure and by which the defendant was deprived of the benefit of his defense to said action and without fault on his part.

“Second. Because counsel for the plaintiff in whose favor this judgment was rendered against defendant did not submit the judgment entry within three days to counsel for the defendant that they might approve or reject the same within two days thereafter as required by the rules of this court, adopted May 1st, 1897, which rule appears on page seven of the printed rules of the common pleas court of Montgomery county, Ohio, being section one under the head of ‘journal entries, etc.’

“Third. Because counsel for plaintiff after the judgment was obtained against this defendant and before the expiration of the January term, 1906, agreed with counsel for the defendant that the judgment obtained against defendant on the 26th day of March, 1906, should be vacated, if defendant prepared and was willing to file an answer, setting up a good defense to said action, all of which defendant is now ready and willing to do.”

This motion was heard July 6, following, and the court found “that good grounds exist for vacating said judgment, to-wit: irregularity in obtaining said judgment.” It was thereupon ordered that defendant file his answer to the petition forthwith, which being done leave was given plaintiff to plead and when the issues are made up the cause to be tried on its merits. The plaintiff thereupon demurred to the answer. This demurrer was overruled as to a portion of the defenses pleaded, and the plaintiff not desiring to plead further, judgment was rendered for defendant dismissing the petition. To all of which adverse action by the court proper exceptions were preserved by the plaintiff.

It appears further from the record that prior to the commencement of the suit the defendant, with an attorney, Mr. Frank E. Janies, called at the office of counsel for the plaintiff respecting the claim; that defendant then admitted the indebtedness, paid twenty dollars on it, and promised, in consideration of some delay, to give security for the balance of the debt, which promise not being kept suit before the justice followed. At the trial before the justice Attorney James did not appear, but Attorney Mattern accompanied the defendant. He did not consider himself as employed by the defendant but appeared only as an accommodation to Mr. James, which facts he at the time communicated to plaintiff’s counsel.

The judgment entry in favor of plaintiff in the common pleas was not presented to any counsel for defendant prior to being entered. On March 31, five days after the judgment was taken, conversation was had between counsel for the plaintiff and Mr. Mattern, who in the meantime had been retained by the defendant, regarding the judgment, Mr. Mattern asking that the judgment be vacated, and counsel for plaintiff expressing himself as willing that the default might be set aside provided an answer showing a defense were presented to him, and it appears remained of that state of mind until on or about April 10. No such answer was presented until a number of weeks had expired. Meantime counsel for plaintiff had received positive direction from his client, by letter dated April 10, 1906, not to consent to the vacation of the judgment, which fact was communicated to counsel for the defendant shortly after April 10, and prior to the filing of the motion to vacate. Mr. James also, on March 31, presented to counsel for plaintiff a short entry vacating the judgment. and giving leave to file answer, but counsel for plaintiff declined to approve it stating that he had said an answer showing a defense was to accompany the entry and to be submitted to him. There was some later negotiation between counsel respecting the vacation of the judgment but nothing changing the effect as hereinbefore given.

The action of the court of common pleas in making the order vacating the judgment was based upon the third clause of section 5354* Revised Statutes, which authorizes the court to vacate after term for “irregularity in obtaining a judgment or order.” No claim seems to have been made at any stage of the controversy that the defendant was not in default, nor that the judgment rendered was not on its face in all respects regular, but the court found that the failure of counsel for the plaintiff to present a journal entry to opposite counsel before giving it to the clerk was such irregularity as is contemplated by' the statute, and “that counsel for plaintiff should have given the defendant a little time to answer when he knew he had come into this court for the purpose that he did.” But the statute itself gave the defendant more than a little time to answer, and that time had expired; no request for delay had been made at the time judgment was taken, and ordinarily it can hardly be regarded as bad faith for counsel to fail to accord the opposite party favors which have not been asked. It is true that counsel for the plaintiff knew that the defendant had appealed from the judgment of the justice and, as part of the procedure, had given an appeal bond. But he also knew that the defendant had admitted the indebtedness, had paid part of it, and had promised security for the balance. He also knew that the defendant at the trial before the justice had in his testimony admitted the execution of the notes- and check and had interposed no defense to the plaintiff’s action. It would seem not unreasonable for counsel to assume under such circumstances that the parties might properly be left to stand upon their legal rights. His client was under the law entitled to a judgment. He was strictly within his legal rights in asking and obtaining such judgment, and- no bad faith can under the circumstances be charged against him, if indeed any importance can be attached to that sort of a charge so long as counsel had asked only what his client was entitled to. Nor can the fact that counsel subsequently in private conversation out of court expressed a willingness to consent that the judgment be opened up provided that a good answer were presented have any material bearing in the case, the condition upon which that promise was made not having been complied with prior to its withdrawal. Plaintiff’s counsel appear to have had only a general retainer, and whether, under a' general retainer to prosecute to judgment and satisfaction, counsel would have had authority to consent to the setting aside of a judgment thus properly obtained we need not stop to consider.

The court’s action in ordering a vacation seems to have been influenced by the fact that the journal entry was not submitted to counsel for the adverse' party before being handed to the clerk for entry on the journal, and the rule of the court on the subject is cited. That rule is: “Counsel for the party in whose favor an order, decree or judgment is rendered, shall, within three days thereafter, unless further time be given by the court, prepare the proper journal entry and submit it to counsel for the adverse party who shall approve or reject the same within two days after the receipt thereof.” It cannot be reasonably contended, we think, that this rule applies to a case, as the one at bar, where there has been no appearance by counsel and the case stands wholly on default. It does not appear that at the time the judgment was taken any information of any character had been given counsel for plaintiff that any attorney had been employed by defendant to make defense in the court of common pleas.- He had been advised that the attorney who was present- with the defendant at the justice’s'court had not then been employed by the party, and the fact that he had been subsequently retained was not communicated to plaintiff’s counsel until several days after the judgment was taken. Judged by any reasonable rule there was no “counsel for the adverse party” in court to whom the entry could be submitted, and the plaintiff was clearly within his legal rights in taking the judgment without that formality.

Our conclusion is that, taking the testimony as a whole, and giving to it the most favorable construction for defendant, it does not tend to show that any irregularity entered into the obtaining of the judgment of the court of common pleas taken March 26, 1906, in favor of plaintiff and against the defendant, and that, therefore, the order vacating the same subsequently made was and is erroneous. It follows, also, that the subsequent judgment of the same -court, at the April term, 1906, dismissing the plaintiff’s petition and adjudging costs against the plaintiff was and is erroneous, and that the judgment of affirmance by the circuit court was and is erroneous.

The judgment will be reversed and judgment entered for plaintiff in error.

Reversed.

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


author: Summers, J.

text:
    Townsend v. The City of Circleville.

      Police power of municipal' corporations — Only such as clearly expressed or implied — Cannot control stoppage of interurban cars.

    Municipal corporations in Ohio have only such police power as is expressly granted or clearly implied, and the legislature has not granted to them power to require by a penal ordinance the stopping of interurban cars to take on and to discharge passengers, but only to regulate the speed of such cars within the corporation.
    (No. 10535
    Decided April 14, 1908.)
    Error to the Circuit Court of Pickaway county.
    The facts are stated in the opinion.

      Mr. J. E. Todd, for plaintiff in error.
    Our first objection to this ordinance is confined to the first section by which the municipal corporation seeks to make a flag stop of every street crossing.
    Municipal corporations in their public capacity possess such powers and such only as are expressly granted by statute and such as may be implied as essential to carry into effect those which are expressly granted. Ravenna v. Pennsylvania Co., 45 Ohio St., 118; Cooley’s Constitutional Limitations, Chapter 13; 1 Dillon on Municipal Corporations, Sections 89, 457; 2 Dillon on Municipal Corporations, Section 936; Minturn v. Larue, 23 How., 435.
    The ordinance in question is not an exercise of the police power. That is, it has no relation to the public health or public morals, or the safety of the inhabitants of the municipality. It is not attempted, for example, to compel cars to stop at street crossings because it is dangerous for them to proceed over the crossing without stopping.
    If the power to enact this ordinance does not belong to the police power or the implied powers of municipal corporations, then the ordinance is invalid unless express authority can be found in the statutes -for its enactment. In the case at bar we contend that the power is not given to the municipality to pass the ordinance in question by any of the provisions of paragraph 9, Section 1356-100, Revised Statutes.
    Corporations have such powers and such only as are expressly granted or necessarily implied, and doubtful claims are resolved against corporations. Collins v. Hatch, 18 Ohio, 524; Markley v. Mineral City, 58 Ohio St., 439; Anderson v. City of Wellington, 40 Kans., 143; Frazee’s Case, 63 Mich., 396; People v. Armstrong, 73 Mich., 288; Leesburg v. Putnam, 103 Ga., 110; St. Louis v. Telephone Co., 96 Mo., 623; State v. Robertson, 45 La. An., 954; Corporation of Raleigh v. Dougherty, 3 Humphrey’s, 11; Murphy v. Jacksonville, 18 Fla., 318; Hanger v. Des

      Moines, 52 1a., 193; Cushing v. Boston, 128 Mass., 330; St. Paul v. Traeger, 25 Minn., 248.
    If the court find that the municipal corporation has lawful authority to enact Section 1 of the ordinance, we then contend that Section 3 of the ordinance is unconstitutional and void for the following reasons:
    (a) Section 3 attempts to confer final jurisdiction upon the mayor of the city to try offenses under the ordinance, and also provides imprisonment as part of the punishment.
    It is too well settled to require argument that where imprisonment is or may be a part of the punishment, the accused is entitled to a jury trial. Ohio Constitution, Art. I, Sec. 10; Thomas v. Village of Ashland, 12 Ohio St., 124. The ordinance in question proposes that “any •* * * person * * * who shall violate any of the provisions of either of the foregoing sections, shall, upon conviction thereof, before the mayor, be fined * * * or be imprisoned * * * or both.”
    If this language means anything it means that the mayor shall have final jurisdiction in contradistinction to his jurisdiction to hear and try cases with the aid of a jury.
    This is not only violative of the constitutional right of a jury trial, but it is also opposed to the statutes of the state, conferring jurisdiction upon the mayor. Sections 1536-773 and 1536-776, Revised Statutes.
    These statutes are merely carrying out the constitutional requirements that all offenses where imprisonment is a part of the punishment shall be tried by a jury, and the mayor’s court is clothed by these statutes, with the authority to impanel a jury and try cases of that character.
    (b) The ordinance seeks to confer upon the mayor exclusive jurisdiction over prosecutions under the ordinance.-
    Construing Section 6795 and Section 1536-100, Revised Statutes, together, it would seem that an offence against a • municipality, or a violation of a municipal ordinance, is also classed under the statutes of Ohio as a misdemeanor. Section 610, Revised Statutes, clothes justices of the peace with general jurisdiction over misdemeanors.
    If this conclusion be correct, then the city of Circleville, in attempting to give to the mayor exclusive jurisdiction over the offences created by the ordinance has exceeded its lawful power.

      Mr. C. W. Murphy, city solicitor, and Mr. I. N. Abernethy, for defendant in error.
    A municipal ordinance making it unlawful for any person in charge of an electric car running upon any street or avenue within the limits of the municipality to fail or refuse to stop such car at any regular stopping place when signalled so to do by persons desiring to board or alight from such car, is valid. The power to enact such an ordinance is granted by Sec. 7, par. 9, of the new Municipal Code. Lockyear v. Covert, 15 Cir. Dec., 486.
    An interurban electric railroad is classed as a street railroad by the statutes of this state, and is subject to the same regulations as are provided for street railroads, in so far as the same are applicable. Railroad Co. v. Lohe, Admr., 68 Ohio St., 101; Section 3443-13, Revised Statutes; Railway Co. v. Railroad Co., 12 O. C. D., 113, 21 C. C. R., 391.
    We insist that this ordinance comes directly within the exercise of the police power of the municipal corporation. Its purpose is not merely, as counsel assume, for the accommodation of passengers who desire to get on or off a car at one of these crossings, although the accommodation or convenience of the passenger is involved. And even this without more, would be sufficient to sustain the right of the council to pass such an ordinance. But, as almost the only purpose of this railway through the city, under its franchise for street car service was to “solicit and transact the business” of carrying passengers from one street crossing to another, the same as that of any street railway company, its right and obligation to do so, involved not only the convenience, but the safety of every man, woman and child attempting to board or alight from its cars.
    We insist, however, that independent of any such power or authority, growing out of the traction company’s obligations under its franchise, and in addition to the powers conferred by Section 1536-100, par. 9, full power was vested in the council under other provisions of the statute, to pass this ordinance. Sections 1536-102 and 1536-131, Revised Statutes.
    Reasonable police regulations, concerning the operation of locomotives, trains and cars in the public ways, have been sustained by the courts in most all the states. McQuillen on Municipal Ordinances, 742; Mayor, etc., v. Railroad Co., 133 N. Y., 104, 28 Am. St., 609; Railway Co. v. City of Cape May, 6 Am. Elec. Cases, 45; Railroad Co. v. Calderwood, 7 Southern Rep., 360; Allen v. Mayor, 22 Atl. Rep., 257; Milling Co. v. Dowell, 30 Pac., 68; Detroit v. Railway Co., 51 N. W. Rep., 688; Railway Co. v. Berry, 18 S. W. Rep., 1026.
    Municipal corporation are prima facie the sole judges respecting the necessity and reasonableness of their ordinances. Ex parte Delaney, 43 Cal., 478; Baily v. Philadelphia, 184 Pa. St., 594; Commonwealth v. Patch, 97 Mass., 221; Sprigg v. Garrett Park, 89 Md., 406.
    The legal presumption is in their favor unless the contrary appears or is established, by proper evidence. Oil Co. v. Danville, 199 Ill., 50; Swift v. Klein, 163 Ill., 269; State v. Trenton, 53 N. J. L., 132.
    It is no argument against the validity of this ordinance that the city may have a civil remedy against the company growing out of the stipulation in its franchise contract, whereby the company agrees to “stop at cross streets and street intersections and at the gate of the main entrance of Forest cemetery.” Cooley on Constitutional Limitations, 206; Detroit v. Railway Co., 95 Mich., 456, 35 Am. St., 580.
    Counsel for plaintiff in error also contends that Section 3 of the ordinance is unconstitutional and void, for the reason, as is alleged, that it seeks to confer final jurisdiction upon the mayor; and for the further reason that it seeks to confer exclusive jurisdiction upon the mayor to try cases of the character of the one under consideration.
    Provision is made for the summoning and impaneling of juries in all such cases, and of which the plaintiff in error availed himself in this case. Section 1536-780, Revised Statutes.
    Power is conferred upon council “to make the violation of ordinances a misdemeanor, and to provide for the punishment thereof by fine or imprisonment, or both.” Section 1536-100, par. 29.
    Final jurisdiction, as we understand the term, means jurisdiction to render a judgment, or make a final order, in a case which fixes the right of the parties, from which appeal or error may lie, whether the case is one triable by a jury or not. Freeman on Judgments (2 ed.), Section 12; State, ex rel., v. Board of Supervisors, 70 Ohio St., 341.
    . The right of the general assembly to confer exclusive jurisdiction upon mayors or similar tribunals for the violation of municipal ordinances, consistent with the constitution of the state, is well settled. 1 Dillon on Municipal Corporations, 436;. Tiedeman on Municipal Corporations, Section 102; Thomas v. Mt. Vernon, 9 Ohio, 291.
    The record in this case shows that a jury was duly impaneled and a trial had. No question has been made but that the jury was impaneled under a proper ordinance providing therefor, the legislature having conferred upon councils the proper authority to do so. Section 1536-786, Revised Statutes.
    The statutory distinction between felonies and misdemeanors, we insist, has no application to violations of municipal ordinances, and was not so intended by the legislature. It has reference to offenses against the state and prosecutions therefor.
   Summers, J.

The Scioto > Valley Traction Company owns and operates an interurban railway between the cities of Columbus and Chillicothe. The road passes through the city of Circ'leville, over certain streets. Permission to construct, maintain and operate the road over those streets was given by ordinance of the city in which it is provided, that cars shall not be run faster than ten miles per hour within the city limits; that an alarm by sounding a bell shall be given, when approaching a street crossing, to notify persons of danger; that the motorman, or some other employee, must be on the front platform of a car while in motion; that all cars, excepting special cars, shall stop at cross streets and at street intersections, and that the company shall carry any passenger from any point within the city to any other point within the city for a cash fare of five cents.

In 1905 the city passed an ordinance making it unlawful for any conductor of any electric interurban or street car, running upon any street in the city, to fail or refuse to stop the car at any street intersection, when signalled or requested so to do by any person desiring to board the car or to alight therefrom; and providing that upon conviction before the mayor he shall be fined not less than five dollars or be imprisoned not more than ten days or both.

The plaintiff in error, a conductor in charge of one of said cars, was charged with wilfully failing and refusing to stop his car at a street intersection upon request of a passenger so to do, to allow him to alight therefrom. On trial to a jury before the mayor the conductor was found guilty and fined.

On error in the court of common pleas and in the circuit court the judgment was affirmed.

The judgment is attacked on the grounds, first, that the city was without authority to enact the ordinance; second, that the ordinance is unconstitutional in that it confers final jurisdiction upon the mayor, and third, that it is unconstitutional in that it attempts to confer exclusive jurisdiction upon the mayor to try misdemeanors.

Counsel for defendant in error contend that the easement, or so called franchise, that was granted, is for a street railway and that it is to be so considered in determining the questions presented. The grant does not appear to be made in conformity to the statutes relating to grants for street railways, however, we do not think it necessary to pass upon that contention, but shall consider the questions presented as relating to an interurban railway, for such the railway of the plaintiff in error is in fact, and so it is referred to in the penal ordinance and in the affidavit.

Whatever may be the rights and obligations of a railway company and of the city under the ordinance granting the easement, power in the city to enforce them by penal ordinances is not one of them. It may be the duty of the railway company, under its grant, to stop its cars at street intersections, but it does not follow that the city may imprison the conductor in charge of one of the cars for a failure so to do. The right of the city to regulate the operation of cars over the railway by penal ordinances depends upon the extent of the police power that is granted to it by the legislature. In Hayes v. Michigan Central Railroad Co., III U. S. 228, an ordinance, granting a right of way to a railroad company, and containing a provision requiring the railroad company to fence its track, is held to be not merely a con" tract, but an exercise of municipal legislation, but it is there pointed out that the requirement to fence is within the police power conferred upon the city.

Section 7 of the municipal code of 1902 (Section 1536-100, Revised Statutes), enumerates the general powers' conferred upon municipal corporations. Subdivision 9, of that section, is as follows:

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

It is said that the circuit court based its judgment in this case upon this statute, and in Lockyear v. Covert, 2 O. C. C. N. S., 389, it is held that this section authorizes the village council to pass an ordinance making it unlawful for any person in charge of an electric street car running upon any street in the village to fail or refuse to stop such car at any regular stopping place, when signalled so to do by persons desiring to board or alight from the car. It is said in the opinion that it was conceded upon the hearing that but for this last clause, authorizing councils “to regulate the speed of interurban, traction and street railway cars within the corporation,” the council would have authority, under the earlier part of the section, to pass the ordinance in question, and that it was contended that this last clause indicates that the authority was not previously given because the legislature by this clause expressly provides that the council may regulate the speed of these cars. The court was of the opinion that this last clause was intended to give power to regulate the speed on such company’s private right of way.

The ordinance in question does not purport to regulate the speed of cars. The purview of the last clause of subdivision 9, authorizing council to regulate speed of interurban, traction and street railway cars within the corporation, as well as the clause authorizing it “to prevent and punish fast driving or propelling of vehicles through the public highways” is the safety of persons, while the purpose of the ordinance- is to require the cars to be stopped in order that passengers may get on or off, and in the absence of a signal it is not required that a car shall be stopped, but it is permitted to proceed without regard to- the safety of persons at street intersections. Counsel for defendant in error contend that under the ordinance granting the easement, it is the right of persons to be carried from any point in the city-to any other point in the city on the road and that the ordinance is designed to provide for the safety of such persons in getting on or off of the car. Such persons have no right to get on or off a moving car and the statute was not designed to enable councils to encourage them in the attempt.

The whole legislative power of the state is vested in the general assembly, the limitations upon its exercise are special, when, therefore, the power of the legislature to enact a given law is disputed, the question is, whether such exercise of the powers is clearly prohibited; but a municipal corporation has only such legislative power as is expressly granted or clearly implied and no other, and when, therefore, its power to enact a particular ordinance is disputed the question is, whether the power is expressly granted or is clearly implied. (Bloom v. City of Xenia, 32 Ohio St., 461; Ravenna v. Pennsylvania Co., 45 Ohio St., 118). We do not think the power in question is either expressly given or clearly implied either by this section or by Section 28 of the municipal code (Section 1536-131, Revised Statutes), providing that council shall have the care, supervision and control of public highways and streets. 'The street railway is what its name signifies, a railway on a street to facilitate its use as a way for persons to pass from one point to another in the city, or through the city; but with the advent of electricity as a motive power the street railway was extended to the suburbs, and as a result' of development in its use it has been found practicable to operate cars for long distances, so that now we have the interurban railway, extending from city to city, over the streets and upon or along the highways. At first, it was regarded merely as an extension of the street railway, and in our legislation it was classed with street railways. Comparatively it is a new thing, but already it has overspread the state, so that now it is possible by that means to travel from Cleveland to Cincinnati and from Cincinnati to Toledo, and from Toledo to Cleveland, and its development is, to some extent, manifest in the legislation enacted from year to year. If every city and village through which such a railway passes may require its cars to be stopped at every street intersection to take on or to discharge passengers, and to serve the purposes of a street railway, then its usefulness as a means of interurban transportation may be very much limited, because so much time will be consumed in passing through cities and villages that it will no longer be practicable for many to travel. in that way. Councils may reasonably be expected to be actuated by considerations of local convenience rather than those of the public and in view of the importance of the subject, and its comparatively recent origin, it would seem to be a matter for consideration by the legislature, and it is in view of these considerations that we reach the conclusion that the power has not been conferred by the general terms of Section 28.

The ordinance provides that any person in charge of a car who shall violate any of the-provisions of the ordinance shall, upon conviction thereof before the mayor, be fined in any sum not less than five dollars nor more than ten dollars or be imprisoned not more than ten days, or both.

If we apprehend counsel’s contention respecting the ordinance, it is that the ordinance is invalid because it attempts to confer upon the mayor the power to imprison without a trial by jury; and because it attempts to limit jurisdiction to hear complaints for violations of the ordinance to the mayor of the citjq excluding justices of the- peace of the county who have, by Section 610, Revised Statutes, jurisdiction throughout the county in which they are elected to inquire into complaints for commissions of misdemeanors, violations of ordinances being misdemeanors under subdivision 29 of Section 7 of the municipal code (Section 1536-100, subdivision 29, Revised Statutes), which reads, “To make the violations of ordinances a misdemeanor, and to provide for the punishment thereof by fine or imprisonment.”

The words, “upon conviction before the mayor” do not prescribe the manner of conviction. The ordinance merely provides what the penalty shall be when there is a conviction.

Section 1819, Revised Statutes, is as follows: “If the charge is the violation of an ordinance in a matter with respect to which imprisonment may be a part of the punishment, and the accused does not waive a jury, the mayor shall, nevertheless, impanel a jury, and try the case on the affidavit, in the same manner, and with like effect, as misdemeanors are tried in the court of common pleas on indictment.” Section 1839, Revised Statutes, authorizes the council of any city or village to prescribe by ordinance for summoning and impanelling juries.

Section 6795, Revised Statutes, defines misdemeanors as folows: “Offenses which may be punished by death, or by imprisonment in the penitentiary, are felonies; all other offenses are misdemeanors,” and Section 610, Revised Statutes, provides that a justice of the peace shall have jurisdiction of misdemeanors throughout the county in which he was elected. Section 7, subdivision 29 of the municipal code, supra, provides that the council may make the violation of ordinances a misdemeanor and the contention is that the effect of this is to give to justices of the peace jurisdiction of complaints for the violation of the ordinance. Prior to the adoption of the municipal code in 1902, Section 1861, Revised Statutes, provided, “By-laws and ordinances of municipal corporations may be enforced by the imposition of fines, forfeitures, and penalties, on any person offending against any such by-law or ordinance.” It did not provide that council may declare the violation of the ordinance a misdemeanor and so there was no claim that a justice of the peace had jurisdiction of complaints for the violations of penal ordinances, excepting by statute in townships in which a hamlet was situated. However, such violations were then just as much misdemeanors as they now are, and a justice of the peace now has no better claim to jurisdiction than he then had. The statutory definition was originally adopted as a part of the code of criminal procedure and it comprises only violations of statutes. And if we are to stick in the bark, the statute does not require the city to make the violation of an ordinance a misdemeanor and the ordinance in question does not declare a violation of its provisions to be a misdemeanor.

Judgment reversed.

Si-iauck, C. J., Crew, and Davis, JJ., concur. Spear, J., not participating.