author: Davis, J.

text:
    The Linwood Park Company v. Van Dusen. The Linwood Park Company v. Rose et al. The Linwood Park Company v. Dudley et al.

      Corporation for owning land for religious meetings — Leases land with restrictive covenants as to use of premises for private dwellings — Injunction proper remedy to restrain injury in breach of covenant — Renting rooms by lessee, a breach of covenant — Nature of refusal of lessee to pay admission fee to grourlds

    1. When a corporation which, has for its object the owning and holding of land for the purpose of carrying on religious exercises and meetings on the same, leases a part of such land with restrictive covenants in the lease that the lessees “during all meetings would be subject to the rules and regulations of said meeting,” and “would use such premises for the purpose of a private dwelling or residence only, except on a special permit from the company,” such covenants are valid and binding on the lessees.
    2. Upon a breach of the covenants, and to. restrain an irreparable injury resulting therefrom, injunction is a proper remedy.

      3. Wtere suck lessees make a business of renting rooms, in their buildings on such leased premises, to temporary occupants, and refuse to obtain a special permit from the lessor and refuse to comply with the reasonable requirements of the lessor, in regard to the privilege of so using the leasehold, such use is a breach of the covenant to “use such premises for the purpose of a private dwelling or residence only, except on a special permit from the company.”
    4. The refusal to pay a gate ,fee, during the meetings, for admission to the grounds of the plaintiff on which the buildings of the defendants are situated, the same as charged to all other persons, is a breach of the covenant that the lessees “during all meetings would be subject to the rules and regulations of said meeting.”
    (Decided October 16, 1900.)
    Error to the Circuit Court of Lorain county.
    The petitions in these cases and the leases upon which they are fouuded are substantially alike, except in names, descriptions of property, amounts of money and dates. They set out that the plaintiff, The Linwood Park Company, is a corporation having its principal office in Cleveland, Ohio; that it is the owner in fee simple of a tract of land in Erie county, Ohio, known as Linwood Park; that it entered into a contract of lease with the defendant by the terms of which it leased to the defendant, his executors, administrators and assigns, for the term of ninety-nine years, the described lot in said Linwood Park. Plaintiff further alleges “that the said contract of lease was made with said defendant upon the following conditions: That the said defendant, during all meetings held at said park, should subject himself to the rules and regulations of said meetings and that defendant will use such premises for the purposes of a private dwelling or residence only except on special permit from the company.

      “Plaintiff says that it is further provided in said, lease that if the defendant should fail to perform any or all the aforesaid covenants herein made for the space of three months after due notice given, this lease shall be null and void; that said due notice was. given to defendant, and plaintiff further says that it has performed all the conditions of said lease to be performed by it.
    “And plaintiff further says that said lease was duly executed and acknowledged by said defendant and. recorded on the records of Erie county, at Sandusky,. Ohio.”
    Plaintiff says that defendant was permitted to build upon the leased lot of land a dwelling house;, and that in 1895 the defendant was permitted by the plaintiff, upon payment of a sum of money, to-use the premises for purposes other than that of a. private dwelling or residence, to-wit, to rent rooms, and beds for hire in said dwelling, and that a like permission was given in 1896 upon payment by defendant to plaintiff of the sum of $1.50 for-each and every bed in said dwelling above the number of four. The plaintiff further alleges that, each of the defendants did pay for the privilege of renting rooms and beds in his dwelling, but that for the years 1895 and 1896, in two of the cases, and for-the year 1896 in the other case, each of the defendants refused to pay anything, although they have during that time rented many rooms and beds in their said dwellings, and are threatening to rent rooms and beds therein contrary to the terms of said-leases, and without license or permit from the plaintiff, and refuses to pay anything therefor, and declares that he is under no obligation to do so. Plaintiff further says that it does not know how many beds were rented by tbe defendants in tbe year 1896, and asks that each defendant may make tbe number known by answer. And tbe plaintiff also says that tbe dwelling bouses built in said park are designed for occupancy during tbe summer months only; that it has many lots for sale in said park; that it has a large hotel in said park, and that tbe use, by defendants respectively, of their dwellings as public boarding bouses or tenement bouses causes irreparable injury to tbe plaintiff, not only in tbe profitable maintenance of its hotel, but also in tbe sale of its lots and that it was this very act that tbe plaintiff contracted against by tbe terms of bis lease and by notice that said dwelling bouses could be used for tbe purpose of private residence only, and that tbe keeping of boarders and roomers would not be permitted except upon special license if granted by tbe plaintiff. Plaintiff says that tbe defendants went into possession under their lease and are now in possession, and prays that an account be taken of tbe indebtedness existing between plaintiff and tbe defendants respectively, that they be ordered to pay into court tbe amount found to be due, and be enjoined from renting beds or rooms in bis dwelling bouse, and for other relief.
    Each of tbe defendants for answer, not denying that plaintiff is a corporation, nor that tbe lease was as alleged, nor that a dwelling bouse has been erected on said real estate, nor that defendant has refused and still refuses to pay to tbe plaintiff any money for each and every bed above tbe number of four in said dwelling, nor that tbe defendant intends to rent rooms in said dwelling bouse in tbe future, nor that be declares that be will not pay and is under no obligation to pay to plaintiff any consideration whatever for the pretended privilege of so doing, denies each and every other allegation and averment contained in the petition. Each defendant says that he was induced to build as he did upon the representation by the plaintiff that he would he permitted to rent and lease the rooms of his dwelling, and that the house is constructed as a dwelling house and with special reference to the renting and leasing of part of the rooms thereof, of which the plaintiff had full notice and knowledge and made no objection thereto, and that if defendant is not permitted to use said house for the said purposes for which the same was constructed the value thereof will be thereby greatly impaired and lessened and all without the fault of the plaintiff. In the Dudley case there is the additional averment that if the use of said house as described in the petition is a use of the premises for purposes other than of a private dwelling or residence only that defendants have received special permission from the plaintiff so to use said premises. Defendants also deny the corporate power of plaintiff to maintain and operate a hotel.
    By way of cross-petition each of the defendants alleges that plaintiff, by the erection of gates between said dwellings and the highway, prevents defendants from having access to their dwellings from the highway except upon payment of certain sums of money to the plaintiff, and prays that the plaintiff may be enjoined from maintaining said gates and from excluding the defendants from having access to or the possession of said lands and the dwelling houses situated thereon. Plaintiff denies the statements of the answers, and by way of answer to the cross-petitions, says that they have charged certain sums to the defendants and to all others for the right and privilege of using that portion of the park in possession of the plaintiff, that is, the beach, the grove, and certain paths and byways accessory thereto; and that when the defendants entered into the-contract of lease, they received notice that they would be obliged as part of said contract to pay-said fee, and that they have always and without complaint paid the same.
    The findings of the circuit court are as follows:
    “This cause coming on for hearing upon the petition of the plaintiff, the answer and cross-petition of defendant, George Van Dusen, the reply and answer of plaintiff, and the reply of defendant, and the evidence submitted, upon due consideration and. at the request of plaintiff made in open court when the decision was rendered, the court finds the following facts, and its conclusions of law, separately: First — That the plaintiff is a corporation duly incorporated under the laws of Ohio, having for its object the owning and holding of land for the purpose-of carrying on religious exercises and meetings upon the same, and the said plaintiff was prior to the-31st day of August, 1891, the owner in- fee simple-of all that tract of land lying along the shore of Lake Erie, in the village of Vermillion, Erie county, Ohio,, and known as Linwood Park, and including the-premises leased by plaintiff to defendant. Second— That on the 31st day of August, 1891, plaintiff entered into a. written contract of lease with defendant, under the terms of which plaintiff leased to defendant, his executors, administrators and assigns for-the term of ninety-nine years, renewable forever,, without fee, and for a consideration of $100.00 paid to plaintiff, what is known as lot 1, being thirty feet, front by fifty feet deep in block 13 of said Linwood Park, Erie county, Ohio, as designated on recorded plat of the same. Said contract was made upon the following conditions: That the party of the second part, defendant, for himself and legal representatives and assigns, covenanted w>.th the said pf. rty of the first part, plaintiff, that he would pay all lawful taxes and assessments made by any or all lawful authorities promptly as they might become due. He also agreed to pay such amounts not exceeding one (1) per cent, per annum of the appraised value as it appears on county tax duplicate, for sanitary purposes and improvements of streets, as the directors of the company might assess. That he would keep said premises in such condition as the sanitary and police regulations of the company might require, ancl during all meetings would be subject to the rules and regulations of said meetings. That he would not permit spirituous, vinous or fermented liquors to be sold or given away by himself or any one else, either by wholesale or retail, on said premises, and that he would not engage or permit others to engage in any occupation, business or practice on said premises that in any way conflicted with or was in violation of any law or laws of the state of Ohio, in force in the year 1884, and that he would use such premises for the purpose of a private dwelling or residence only, except on special permit from the company. Third — That in the year 1890 and before the making of said contract of lease, with the knowledge and consent of plaintiff, defendant took possession of and built upon his said lot a frame dwelling house two stories in height, containing seventeen rooms, designed for occupancy during the summer months only, said house covering almost the entire lot, and that since and including the year 1890 down to the bringing of

      this suit defendant has rented said rooms in such house to different persons, sometimes for a day, ttoo days, a week or a month; has furnished to said tenants cots and beds and tables in their rooms, bed-clothing, cooking utensils and tableware, and the tenants were permitted to do their own cooking on stoves furnished by defendant in one large room on-the ground floor, and during that period there have been at times as many as fifteen or twenty people occupying rooms and cooking their meals and eating the same in said dwelling, and defendant has declared his intention to so rent furnished rooms in said building without paying anything therefor, and-declared that he is under no obligation to obtain any permit from plaintiff for that right. Fourth — That said dwelling house was so constructed by defendant with the intention of, and for the purpose of, using the same as a dwelling, and with the intention of renting and leasing rooms thereof, of which intention and purpose plaintiff from and during all the time of the construction of said house had full knowledge and notice, and that plaintiff made no objection to the said construction of said dwelling for said purpose, nor to the renting and leasing of the rooms thereof, until several years after the completion thereof, and that plaintiff had during all said time full knowledge that defendant had during several years rented furnished rooms in said dwelling, and that plaintiff made no objection thereto, and made no demand or claim for payment to plaintiff on account thereof until the year 189J/.. That in February, 1894, plaintiff, through its board of directors* passed a certain resolution by the terms of which the defendant was required to pay to the plaintiff for the privilege of renting rooms in said dwelling the sum of twenty-five dollars for that year. And thereafter plaintiff demanded of the defendant the sum of $25.00, which sum of $25.00 was paid by defendant’s tenant of said premises, said tenant then being in possession thereof, and said tenant on settlement with defendant for the rent withheld from defendant and by defendant’s consent on account of such payment having been by said tenant made to plaintiff, the sum of $25.00. That in the year 1895 plaintiff, by its board of directors, passed a like resolution, requiring the defendant to pay to the plaintiff the sum of twenty-five dollars for a like privilege of renting rooms f >r that year. And thereafter plaintiff demanded of the defendant the sum of $25.00, which sum of $25.00 the defendant refused to pay. And in the year 1896 said plaintiff, by its board of directors, passed a resolution requiring the defendant to pay to the plaintiff for that year the sum of $1.50 for each bed in said dwelling above the number of four. And thereafter plaintiff demanded of the defendant the sum of $1.50 for every bed above the number of four in said dwelling, and that defendant refused to pay the same. That in the years 1896 and 1897 the defendant refused to pay any money %ohatever to the plaintiff on plaintiff’s claims therefor on account of the renting of rooms by defendant in said dwelling. That during the summer months of the years 1890, 1891, 1892, 1893, 1894, 1895, 1896 and 1897, the defendant has rented to different tenants the rooms in said dwelling, and that the defendant having refused to pay to the plaintiff any sum whatever during the years 1895, 1896, and 1897 on account of the renting of such rooms, this action was brought to restrain the defendant from making such use of said dwelling. Fifth — That defendant at the time he was building said •dwelling, and before he made his written contract with plaintiff, paid such gate fee as the plaintiff then prescribed, and has since said time always paid such gate fee as plaintiff from time to time prescribed, and without objection up to the time of the bringing of this action. Sixth — That said Linwood Park, including defendant’s premises, has always since plaintiff’s incorporation in 1884, been enclosed by a high picket fence with a gate on its southern side, leading out on the public highway. That while said park is within the precincts of the village of Vermillion, the village authorities have never lighted or policed or graded or repaired the streets of the park, or any portion of said park, or exercised any control of any kind over them, and that defendant by the terms of his lease agreed with plaintiff that he would pay sucb amount, not exceeding one (1) per cent, per annum of the appraised value as it- appeared on the county tax duplicate, for sanitary purposes and improvements of the streets. Sixth (a) — The court further-finds that on a plat of the Linwood Park ground in the recorder’s office at Sandusky, O., the following ■entries are made, to-wit:
    Sandusky City, O., June 9, 1884.
    I hereby certify the within to be a correct plat of part of Lots Nos. 26 and 25, sec. No. 1, Vermillion township. Said plat is laid out in feet and tenths of feet, the courses, widths of streets, avenues and lengths of boundary lines of all the lots are indicated ■on the plat. Albert JudsoN, County Surveyor.
    I hereby certify that the annexed plat was approved by the council of the village of Vermillion by ■ordinance passed on the 24th of July, A. D., 1884.
    George Krapp, Clerk of said Village pro tern.

      The Linwood Park Company, by its president, William Horn, hereby consent to the above plat and ■survey, and the same plat and survey was made at the request of said company. In testimony whereof said company, by its president, sets its hand this 11th day of June, A. D., 1884.
    Linwood Park Company,
    By its President, William Horn.
    State' of Ohio, Cuyahoga County, ss: Before me, ■a notary public in and for said county and state, appeared the above company, by its president, William Horn, and acknowledged the signing of the above instrument for the purposes therein expressed. In witness whereof I hereunto set my hand and official seal this 11th day of June, A. D. 1884.
    (Seal) George Hester, Notary Public.
    State of Ohio, Erie County, ss: Before me, C. B. Winters, a notary public in and for Erie county, Ohio, personally appeared Adam Bornheimer, who acknowledges that he is the secretary of the Linwood Park Company, and their agent duly authorized in writing for the acknowledgment of the annexed plat of land owned by said Linwood Park Company, a corporation of the state of Ohio, which is hereby dedicated as an annexation to the incorporated village of Vermillion, Erie county, Ohio, under the laws of the state of Ohio, in every respect except that the streets laid out in said map are not dedicated for public use and the title to the same is not vested in the said village of Vermillion, but the title to the same shall forever be and remain in the said Linwood Park Company, under such rules and regulations as ■said Linwood Park Company may prescribe for the use of purchasers of lots abutting thereon and other parties having access thereto, and vacant space of about nine (9) acres not subdivided into lots is reserved for a public park, and the title therein shall remain vested in the said Linwood Park Company subject to its rules and regulations, for the more particular description of which plat reference is hereby made to the survey and field notes of Albert W. Judson, county surveyor of Erie county, Ohio, said June 9th, A. D. 1884.
    Adam Bornheimer, Agent Linwood Park Company.
    In testimony whereof I have hereto signed my name officially and affixed my notarial seal, this 24th day of June, A. D. 1884.
    C. B. Winters,
    (Seal) Notary Public.
    Received July 28th and recorded August 2, 1884.
    James Flynn, Recorder.

    Seventh — That the religious meetings held at said park, during which time sermons and lectures are given by various religious organizations under agreements with plaintiff given to such organizations each privileges, but that in other respects the park grounds are under the rules and regulations of the plaintiff, and that plaintiff has at various times prior to the, date of the contract of defendant passed rules and regulations requiring all persons entering the park to pay an admission fee at the gate at all times during the summer season and an additional fee at the times of such religious meetings. Eighth — That the grounds of said park owned by plaintiff contain a hotel, a large dining room, and lodging house, a pavilion for musical entertainments, a tabernacle for religious and other meetings, a large stand from which confections and refreshments are sold, and a large bath and boat house on the beach, all of which are owned by plaintiff and none of which are free to the defendant’s use. Eight and One-Half — The gate fees are used for keeping up the park and its buildings and maintaining a superintendent in summer and winter to look after the same. Ninth — Before defendant made his contract of lease the plaintiff, through its board of directors, had passed regulations requiring the payment of fees from every one for the privilege of entering the park during the summer months and an additional fee at the times of holding the religious meetings, and defendant always paid such entrance fees from time to time when demanded of him by plaintiff without protest. The court therefore finds as its conclusions of law, and adjudges and decrees: First — That defendant may assign his lease and estate thereunder in whole or in part and that said defendant' or his lessees or assigns may rent for compensation either the whole of said premises or any portion of the same or any number of rooms in said dwelling, to as many different tenants as the same will accommodate, and for any length of time from one day to one year, or longer, and that for the proper accommodation of said tenants defendant or his assigns may furnish said rooms with beds or cots, bedclothing, carpets and curtains, to be used by said tenants in said dwelling, and that defendant or his assigns may further furnish their said tenants with cooking utensils, tableware and cooking stoves, and permit said tenants to cook and eat their meals on said premises, and defendant or his assigns are under no obligation to obtain a permit from plaintiff for so doing or to pay any sum of money whatever therefor.

      Second — That defendant at all times before going into the park or entering the park gate must pay such reasonable entrance fee as plaintiff may prescribe, such fee to be uniform with the fees charged to and demanded of other persons who may own real estate in said park.
    Third — That said written contract of lease with defendant did not waive or abridge the right of plaintiff theretofore exercised and existing to charge such uniform fees at the gate at all times.
    It is further ordered that the petition and cross-petition of plaintiff and defendant be dismissed and that the defendant pay one-third and that the plaintiff pay two-thirds of all costs in this action for which execution is awarded. Whereupon plaintiff excepted then and there to all the conclusions of law except those relating to gate fees, and defendant excepted to all conclusions of law relating to gate fees. Whereupon on the same day both plaintiff and defendant filed their motions for new trial, which by the consideration of said court were overruled, to which overruling both plaintiff and defendant then and there excepted.”
    Also the following additional facts were found in the Dudley case:

      Fourth — That in the month of June, 1895, and during the building of the said dwelling house of the defendants, after the plans therefor had been perfected and after the foundations thereof had been laid and the same enclosed, plaintiff, then having full knowledge that defendants toere constructing said dwelling with the intention of renting and subletting rooms therein, notified said defendants that they would be required to pay for the privilege of renting rooms for hire in their said dwelling house, and that defendants

      thereupon enquired of plaintiff what the charge would he, hut were not then informed and that thereafter on demand of plaintiff made in the fall of 1895, defendants did then pay to plaintiff the sum of $15.-00 on account of the said renting of rooms during the year 1895, and that in 1896 a resolution toas passed by plaintiff requiring the payment of $1.50 for each bed above the number of four, but at that time defendants refused to pay anything under said resolution.

    The plaintiff in error claims that the circuit court erred in rendering a decree for defendants and that the decree should have been for the plaintiff. The defendants in error respectively claim by way of cross-petition in error that the circuit court erred in dismissing their cross-petitions.

      Hamilton, Hamilton & Smith, for plaintiff in error.

      W. B. Bedortha, for defendants in error.
   Davis, J.

The parties to these leases had the right to make any restrictions upon the mode of enjoying the leased property which they might agree upon, provided that such restrictions should not be contrary to public policy. The Round Lake Association v. Kellogg, 141 N. Y., 348. The circuit court found that each of the leases contained the following covenants by the lessee, viz.: “that he would use such premises for the purpose of a private dwelling or residence only, except on a special permit from the company,” and that he “during all meetings would be subject to the rules and regulations of said meeting.” It is also found as a fact in the cases that the plaintiff is a corporation having for its object the owning and holding of land for the purpose of carrying on religious exercises and meetings on the same. In view of this object the defendants acquired their leaseholds, and in furtherance of this object the plaintiff exacted these restrictive covenants from the lessees. To state it in another form, the leases were given and received in furtherance of the purpose of the plaintiff’s existence, that is, to keep up religious meetings and literary entertainments and maintain summer homes for those who resorted to the place; and the defendants, in good faith, ought to be bound not only to the plaintiff but to the other lessees as-well, to carry out the common design. We can see nothing unreasonable in the covenants, and nothing in them contravening public policy. They are therefore valid and binding obligations, unless the plaintiff is estopped or must be held to have waived them. ,

To constitute a waiver it must fairly appear that there was an intention to waive the covenant right, and the waiver must be founded upon a consideration. Neither of these essential facts appears in the findings of the circuit court. Whether there was a waiver operating by estoppel depends upon the effect to be given to the finding that these defendants constructed their dwellings with the intention and purpose, not only of using the same for dwellings but also with the intention of renting rooms therein, and that plaintiff had notice of such construction and intention and of the actual renting of rooms, and made no objection thereto, and made no demand for payment during several years. It does not appear to us that the mere sufferance of the plaintiff, unaccompanied by any statement or conduct which misled the defendants, would work an estoppel. Indulgence to the defendants, whatever the motive, could not work them any injury; nor could it confer upon them the right to commit a breach of their covenants. No “special permit from the company” was given; and the plaintiff did not represent to the defendants, or give them good reason to believe, that it would release its rights under the contract. Indeed, in the Dudley case the plaintiff notified the defendants during the construction of their building^ that they would be required to pay for the privileges of renting rooms for hire in their dwelling house, and on demand from the plaintiff payment was made regularly until the time when these lessees became refractory.

These cases, then, come up on the question whether the defendants have committed a breach of their covenants in the lease. It is insisted by the defendants that as they are not. restricted as to assignment' or under letting, by the leases, they may sub-let or assign as they see fit, even to the extent of renting all the rooms in the house to as many different tenants. This is no doubt true as an abstract proposition of law; but in these cases it is limited by the covenant that they shall use the property for the purposes of a private dwelling or residence only, except on special permit from the company. They may exercise their right to assign or sublet freely until they subject the property to uses other than that of a private dwelling or residence. The moment they do that they have broken the covenant, unless they have done it under a special permit from the company. Now have they subjected the property to a use different from that covenanted? For it is admitted by the defendants that they have rented rooms in their dwellings without permission from, and in defiance of, the company. The findings of the circuit court indicate that they have done this so systematically, and to such an extent, as to amount to a business. Yet they insist that each house is still a dwelling house, or at least a collection of dwellings. “Each of such tenants,” says, the counsel for defendants, “used his apartments for the purposes of a private dwelling.” But the plain provision of the covenant is that the leased premises, shall be used for the purposes of a dwelling or residence only,» not for a number of dwellings. More than that, they are restricted to the use of it for a private dwelling or residence; and that is not a private dwelling or residence which is used in the business of renting rooms to lodgers or tenants.

A lodger is one avIio has the right to inhabit another man’s house. One who lives in a hired room or rooms in the house of another. 1 McAdam Landlord & Tenant, 619. Century Dictionary: A lodging house is a house where lodgings are let. Century Dictionary: “The distinction (between lodgers and tenants) may, in some cases, be fairly drawn, and may depend upon the character of the hiring, with reference sometimes to the business of the lessor and the presumed intention of the parties, as gathered from all the other surrounding circumstances of the particular case. The tenant is put into the exclusive possession of his rooms, while the boarder or lodger has merely the use of them without the actual or exclusive possession, which is in the lessor subject to such use.” 1 McAdam Landlord & Tenant, 621.

In Rose v. King, 49 Ohio St., 213, 227, this court, per Spear, J., adopted the following definition of a “tenementhouse:” “A building,the different rooms or parts of which are let for residence purposes by the possessor to others, as distinct tenements, so that each tenant, as to the room or rooms occupied by him, would sustain to the common landlord the same relation that the tenant occupying a whole house, would to his landlord.” Now, while it is not necessary for our present purpose, to determine whether the use to which these dwellings were subjected was that of lodging houses or of tenement houses (and it was one or the other) it is manifest that it was not a use “for the purposes of a private dwelling or residence only.”

Under the cross-petition in error of the several defendants we are called on to review the finding of the circuit court that the written contract of lease with the defendants did not waive or abridge the right of plaintiff to charge' such uniform fees at the gate, at all times and to all persons. We have already said that the covenant by each of the lessees that he “during all meetings would be subject to the rules and regulations of said meeting,” was a lawful covenant; and that it was made in furtherance of the common design to maintain a summer resort and keep up religious services and literary entertainments. The collection of the gate fees was not an abridgment of the property rights of the defendants. It was a reasonable and voluntary concession on their part, when they acquired the leases to effectuate the object for which Linwood Park was created and maintained. It was a condition without which they could not have acquired the leaseholds and which they accepted. They ought not now to be heard to complain of if. We find no error in the dismissal of the cross-petitions.

If the defendants should be allowed to disregard these covenants it would speedily take the life of the enterprise by ta,king away its entire source of income. To restrain such an irreparable injury, the plaintiff is in our opinion clearly entitled to an injunction against each of the defendants in these cases.

The judgments of the circuit court dismissing the petitions of plaintiff are 'reversed and judgment given for plaintiff in all the cases. The judgments of the circuit court dismissing the cross-petitions of defendants are affirmed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    State of Ohio v. Hogan.

      Tramps — Offenses against, public policy — Section 6995, Rev. Stat. — Section 26 of Article 2, of constitution — Constitutional law.

    Section 6995, Revised Statutes, commonly known afl the tramp law, whereby punishment is prescribed for threatening to do injury to the person of another by a tramp, is not in conflict with the Ohio bill of rights, nor with Section 26, of Article 2, of the constitution, nor with the fourteenth amendment to the constitution of the United States.
    (Decided October 16, 1900.)
    Exceptions by the prosecuting attorney to the decision of the court of common pleas of Scioto county.
    At the January term, 1900, of the court of common pleas of Scioto county, Timothy Hogan was indicted for a violation of section 6995, Revised Statutes, commonly known as the tramp law. Hogan’s counsel interposed a demurrer to the indictment which was sustained by the court, and defendant discharged. The prosecuting attorney now presents his bill of exceptions to such decision, and asks the decision of this court thereon in order to determine the law to govern in any similar case.

      Henry Bannon, prosecuting attorney, for the exceptions.
    It is not necessary to cite authorities to this court to sustain the principle that courts will presume the legislature intended a statute to be reasonable, constitutional and just. This law enacted by the legislature would not have been enacted had a mischief not existed which demanded an adequate remedy. The following states have legislative enactments similar to section 6995: Iowa, secs. 4793 and 5134; Massachusetts, page 1170 (1882); New Hampshire, page 720 (1891) ; Pennsylvania, page 541; Rhode Island, page 1094 (1896) ; Vermont, sec. 4762 (1894) ; Wisconsin, sec. 4556a (1898); Indiana, sec. 2256; Connecticut, secs. 1546, et seq.

    It is contended that because section 6995 provides a punishment for a tramp who is found carrying q firea ,n that the constitutional right of individuals to bear arms for their defense and security is thereby violated. This is not a reasonable conclusion. We claim, first, that the clause in the statute regulating the carrying of a firearm does not render the statute unconstitutional; and, second, that even if it does, there is but a partial unconstitutionality not affecting the other provisions of the statute nor the case at bar.
    As to our first claim: The offense of going armed with a dangerous weapon to the terror of the people was indictable at common law. State v. Huntly, 3 Iredell Law, 418; 5 Am. and Eng. Enc. Law, 729 (2nd Ed.).
    It is the province of the legislature to regulate the carrying of firearms and enactments for that purpose are valid and constitutional. Commonwealth v. Murphy, 166 Mass., 171; Miller v. Texas, 153 U. S., 535; Andrews v. State, 3 Heiskell, 165; Bank v. Hines, 3 Ohio St., 1; Commonwealth v. Clapp, 71 Mass., 97; Fisher v. McGirr, 67 Mass., 1; Treasurer v. Bank, 47 Ohio St., 503.
    Section 6995 is not special or class legislation. It is a general law. It operates equally upon all of' a certain class, and legislation which affects alike all persons pursuing the same business, under the same conditions, is not such class legislation as is prohibited by the constitution. Louisiana v. Schlemmer, 10 L. R. A., 135; Barbier v. Connolly, 113 U. S., 27; Rostand v. Backus, 18 L. R. A., 729; Sutton v. Tennessee, 33 L. R. A., 589; Lehman v. McBride, 15 Ohio-St., 573.
    It is necessary to enact laws affecting certain classes, the restriction being that such laws apply to all of a given class and that individuals from such classes be not excepted. Individuals are not excepted from the operation of section 6995, but this, enactment applies to all of the genus tramp. Brown v. State, 38 Ohio St., 374.
    It is within the power of the body that legislates, for the people to determine whether particular rules, shall apply to all the citizens of the state or to a class of its citizens only, the limitation upon such power being that any distinction made by them must be-based upon some reason which renders such distinction important. Cooley’s Constitutional Limitations, (1868) 391-397; Railway v. Mackey, 127 U. S., 205; Walston v. Nevin, 128 U. S., 578; Wurts v. Hoagland, 114 U. S., 606; Railroad v. New York, 165 U. S., 628.
    Vagrants and those following vicious pursuits have-always been subject to legislation. State v. Maxcy, 1 McMullin, 501; Ward v. Missouri, 14 Mo., 138; People v. Forbes, 4 Parker’s Crim. Rep., 611.

      The defendant claims that this statute denies him due process of law and the equal protection of the law and for those reasons is repugnant to the provisions of the fourteenth amendment. Those two guaranties are entirely distinct. Cooley’s Constitutional Limitations, (1868) 356; State v. Bates, 14 Utah, 293; Wick Yo. v. Hopkins, 118 U. S., 356.
    This statute is the proper exercise of the police power of the state for the preservation of public order and to prevent offenses against the state. Cooley’s Principles of Constitutional Law, 309; Cooley’s Constitutional Limitations, 572; Stone v. Mississippi, 101 U. S., 814.
    The constitutional provision prohibiting cruel and unusual punishments refers to degrading, inhuman, barbarous and painful punishments and is not directed against the amount of the punishment. If it were, the punishment imposed is-not so severe as to shock public sentiment. Cooley’s Constitutional Limitations, 330; In re Kemmler, 136 U. S., 436; Cornelison v. Commonwealth, 84 Ky., 583.

      George M. Osborn, for defendant.
    By this section of the statutes the legislature has attempted to manufacture a felony by a combination of attributes, no one of which, in itself, is immoral or vicious. Poverty has always been recognized by society and by the law as an existing condition that, while deplorable, was unavoidable.
    We know of no law that makes it a crime for any other person than one whom the legislature in its wisdom has seen proper to define as a tramp to enter an inclosure about a dwelling house without the permission of the owner, unless notice against such trespass has been given; nor can we find any statute making it a crime to threaten, injury to the real or personal property of another, nor even to the person of another. It is true that a threat to do injury to the person of another may be of such character as to-justify the court in putting the offender under bond to keep the peace; but nowhere can we find authority for inflicting other or further punishment for that, offense.
    There is a further provision in this section that, any tramp found carrying a firearm or other dangerous weapon, shall be imprisoned in the penitentiary. If it be true that there is nothing criminal in being-a tramp, then his right to carry a firearm or other-dangerous weapon for his defense, is one guaranteed by Section 4 of Article 1 of the Ohio constitution.
    The statute prohibiting the carrying of concealed weapons has been held constitutional upon the. ground that it is a reasonable limitation upon that, constitutional right, and comes within the proper exercise of the police power.
    Section 6995 is not a limitation of the right to bear-arms, but an absolute prohibition, with a most unusual, if not cruel, punishment proscribed, and limited in its application to certain individuals. Palmer & Crawford v. Tingle, 55 Ohio St., 423.
    All restraint upon these inalienable rights is an exercise of the police powers of the state. State v. Walsh, 35 L. R. A., 231; Pace v. Alabama, 106 U. S., 583; Leeper v. Texas, 139 U. S., 462; Caldwell v. Texas, 137 U. S., 693; Barbier v. Connolley, 113 U. S., 27; Donnell v. State, 12 Am. Rep., 375; Hurtado v. California, 110 U. S., 516; United States v. Cruikshank, 92 U. S., 542.
    The natural rights of man were recognized and insisted upon by the founders of our country and the= framers of our constitution as the fundamental basis of our institutions. Passenger Cases, 48 U. S. (7 How.), 232.
    The first section of the fourteenth amendment added nothing to the rights of Avhite citizens, but merely extended their inherent rights to the recently emancipated negroes, and was a consequent of the emancipation proclamation and the thirteenth amendment. Slaughter House Cases, 83 U. S., (16 Wall.) 36; Ex parte Falk, 42 Ohio St., 638.
    Can the legislature, by mere definition, make an act not malum in se a felony?
    Article i, Section 4, of the Ohio constitution, guarantees to the people the right to bear arms for their defense and security. Section 6995 invades this right and makes the act of carrying a firearm, or other dangerous weapon, of itself a felony. It will be observed that the section does not make the solicitation of charity an offense, nor does it connect the use of a firearm or other dangerous weapon in any way with an attempt to extort charity, but makes the mere act of possession of arms a felony. State ex rel. Garvey v. Whittaker, 35 L. R. A., 561; Re Bayard, 25 Hun., 549; 61 How. Pr., 294; Stoutenburg, Intendant, v. George Frazier, No. 946, court of appeals of the district of Columbia, decided March 7, 1900, 28 Washington Law Rep., 256; Wilkinson v. Leland, 27 U. S., (11 Pet.), 627; Tarrett v. Taylor, 13 U. S. (9 Cranch.), 43; Lawton v. Steele, 152 U. S., 133; Wick Yo v. Hopkins, 118 U. S., 356; Railway Co. v. Beckwith, 129 U. S., 26; Hayes v. Missouri, 120 U. S., 68; Duncan v. Missouri, 152 U. S., 377; Coal Co. v. Rosser, 53 Ohio St., 12; State ex rel. v. Ferris, 53 Ohio St., 314; State v. Hinman, 23 Am. St., 22, and note.
   Spear, J.

The ground of the demurrer is the alleged invalidity of the statute on which the prosecution is based. That statute (section 6995, Revised Statutes) is:

“Whoever, except a female or blind person, not being in the county in which he usually lives or has his home, is found going about begging and asking subsistence by charity, shall be taken and deemed to be a tramp; -any tramp who enters a dwelling house, or yard or inclosure about a dwelling house, against the will or without the permission of the owner or occupant thereof, or does not, when requested, immediately leave such place, or is found carrying a firearm, or other dangerous weapon, or does or threatens to do any injury to the person, or real or personal property of another, shall be imprisoned in the penitentiary not more than three years nor less than one year; and any person may, upon view of any such offense, apprehend such offender, and take him before a justice of the peace, or other examining officer, for examination.”

It is contended that the section contravenes our bill of rights, and section 26 of article 2 of the constitution, and the fourteenth amendment to the constitution of the United States.

The indictment is:

“That Timothy Hogan, late of the county of Scioto aforesaid, on the fourth day of January, in the year of our Lord, one thousand, nine hundred, in the county of Scioto aforesaid, not'being then and there a female person, and not being then and there a blind person, and not being then and there in the county in which he usually lives and has his home, and being then and there found going about begging and asking subsistence by charity, and being then and there a tramp, did unlawfully and purposely threaten to do an injury to the person of another, to-wit: to the person of Ferdinand C.Searl,Jr.,contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

It will be noted that the specific charge is that the defendant, being a tramp, did unlawfully -and purposely threaten to do an injury to the person of another. Our inquiry is, therefore, specially directed to the sufficiency of the indictment and the validity of the statute as to the acts charged, and the right of the state to prohibit and punish them as prescribed. In brief the claim against the law is that it deprives persons of liberty without due process of law and denies to them the equal protection of the laws, and deprives of the right of seeking and obtaining happiness and safety; that it is an act of a general nature but not of uniform operation throughout the state; and that it subjects the accused to a cruel and unusual punishment. And it is specifically urged that the act does not operate uniformly because it provides a punishment for an offense committed in one county different from punishment for a like act committed in another, inasmuch as the offense of threatening to do injury to the person or property of another in a county other than that of the residence of the accused may be punished by incarceration in the penitentiary, while if done in the county of his residence is at most a misdemeanor.

It is conceded that the law is of a general nature. The test of uniform operation, and with respect to the required conformity to the “law of the land” and to the requirement of “due process of law,” seems to be that if the law under consideration operates equally upon all who come within the class to be affected, embracing all persons who are or -may be in like situation and circumstances, and tbe designation of tbe class is reasonable, not unjust nor capricious or arbitrary, but based upon a real distinction, tbe law does operate uniformly, and if, added to tbis, tbe law is enforced by usual and appropriate methods, tbe requirement as to “due process of law” is satisfied. As said by Mr. Justice Field, in Dent v. West Virginia, 129 U. S., 114: “Sucb legislation is not open to tbe charge of depriving one of bis rights without due process of law, if it be general in its operation upon tbe subjects to which it relates, and is enforceable in tbe usual modes * * * adapted to tbe nature of tbe case.” It is not essential that it operate upon all tbe inhabitants of tbe state; nor is it an objection that it distinguishes a class. In tbe very nature of things, tbe law must, in dealing with persons and property and governmental divisions, group persons or objects having similar attributes into classes, and tbe general assembly must legislate appropriately for each, and unless it is made manifest that sucb legislation is directly forbidden by tbe constitution, or tbe attempted classification is purely arbitrary, unreasonable, unjust or capricious, tbe power of tbe general assembly to thus classify cannot be successfully challenged. Nor is it an objection to a penal statute that it does not apply to all persons who might by any possibility commit tbe act interdicted. It is for tbe legislature to determine bow far to go in order to afford tbe desired protection to society. The exemption of some, where it does not interfere with tbe rights of others, is not open to objection on constitutional grounds. Tbe principle is illustrated in tbe statute under review. Females and blind persons are not included within its terms. Tbis, presumably, from considerations of humanity, but principally because but little, if any, danger is. threatened from such, and this exemption has not met with objection in this case. The act in question undertakes to define a tramp, or vagrant, by stating-what acts shall constitute such character. It is, in the main, the old method of describing a vagrant, and vagrancy, time out of mind, has been deemed a condition calling for special statutory provisions, i. e.r such as may tend to suppress the mischief and protect society. These provisions rest upon the economic truth that industry is. necessary for the preservation of society, and that he who, being able to work, and not able otherwise to support himself, deliberately plans to exist by the labor of others, is an enemy to society and to the commonwealth. The statute applies to all of the class described no matter where in the state they may be found; it does not subject any coming within the designation to a different restriction, or accord to any a different privilege under like conditions. So that, unless there is controlling force in the objection that the statute seeks to punish an offense committed in one county in a different way from a like offense committed in another county, the law cannot be held wanting in uniformity of operation. If the rule is that every criminal act of similar nature or character must meet with like condemnation and like punishment, without respect to whether the circumstances under which it is committed are the same or are different, then the statute in question cannot be maintained. But is that the rule? Is it not manifest that a criminal act committed under some circumstances and in some situations may be followed by consequences infinitely more serious than if committed under different circumstances? Take the crime of forcibly breaking into a dwelling house with intent to steal or commit a felony. If done in the night season it is burglary and punished accordingly; if in the day season it is punished otherwise, and always has been; at least the distinction in the two offenses has always been observed. Why? There can hardly be any difference between them as to moral turpitude. The reason is simply that the consequences as. to injury to persons, by bodily harm to the inmates of the house, or by terrorizing them, are immensely greater in the one case than in the other, and the chances of detection less. Shall the burglar be heard to complain because he is punished with more severity than the mere housebreaker? Again we have a statute (section 7024) making it a penitentiary offense for a teacher to have sexual intercourse with any pupil with her consent while under his instruction, and this without respect to the age of either. Shall a seducer who offends against this statute be heard to say that he should not be punished because another man, not a teacher, had he accomplished the rhin of the same woman, would have gone scot free? Hardly. One Brown made that plea to this court, but the court Brown v. State, 38 Ohio St., 374, refused to entertain it, and held the law to be valid. Here, too, the moral turpitude may not be greater, but there is an essential difference in the condition of the parties. The opportunity for winning trust, confidence and influence is likely to be much greater in the one case than in the other. Hence a similar act by the one is severely punished, while if by another no criminal punishment may follow. The distinction sought to be drawn is illustrated further by the United States statutes relating to mutiny, piracy, the slave trade,. and other offenses upon the high seas, sections 5359 to 5384, U. S. Revised Statutes. Piracy, by the law of nations, is any robbery or forcible depredation on the high seas without lawful authority, done animo furandi, and offenses against this law, where the party is brought into or found in the United States, are punished by death. Congress, under authority of article 1, section 8, of the constitution, has further defined and provided for the punishment of piracy, and by the provisions of the sections referred to, robbery on the high seas is made piracy and punishable with death. So, too, any captain or mariner who piratically and feloniously runs away with a vessel, or any goods or merchandise thereon, of the value of fifty dollars, or voluntarily yields such vessel to pirates; or any seaman who forcibly endeavors to hinder his commander from defending the ship or goods, or makes revolt in the ship, shall be adjudged a pirate and suffer death. So, tod, any person who, on the high seas, willfully and corruptly, casts away or otherwise destroys any vessel of which he is the owner in whole or in part, with intent to injure an owner, underwriter, or merchant having goods thereon; and any person not being an owner, who on the high seas, willfully and corruptly casts awmy or otherwise destroys any vessel to which he belongs, the property of any citizen, shall suffer death. So in regard to the slave trade it is provided that anyone being of the crew of any foreign vessel engaged in the slave trade, or of any vessel owmed, in whole or in part, or navigated by any citizen, wdto forcibly confines or detains on board such vessel any negro or mulatto with intent to make such negro or mulatto a slave, or offers to sell such person, or anywhere on tide water transfers to any vessel such person, or delivers on shore from on board such vessel snch person, with intent to make sale of snch person, and whoever, being of such crew, seizes any negro or mulatto with intent to make such person a slave, or decoys or forcibly brings or carries or receives such person from such offender, is a pirate and shall suffer death. Acts of a similar nature, but of less turpitude, are punished by heavy fines or by imprisonment at hard labor from two to seven years, or both.

Has anyone ever heard of a jack tar accused of mutiny, or a captain of piracy, or a miscreant engaged in the slave trade, successfully maintaining that because insubordination by an employe on the land, or robbery, or the dealing in human flesh, is punished in a different manner, or with less severity, or not punished at all, is a reason why he should not be convicted and have his miserable existence terminated on the gallows or at the yard-arm? And yet every one familiar with criminal law will at once recognize the enormous difference between the punishment meted out under these sections and that inflicted upon persons guilty of offenses of like nature within domestic waters, or on land, and it must be manifest that the ground for distinction is found in the differing circumstances. One prominent consideration moving to the legislation doubtless was that piracy and the slave trade were offenses not only against humanity, but against civilization, committed under circumstances making successful resistance by the intended victim next to impossible, and detection and apprehension of the guilty party extremely difficult. Piracy had become an organized' system of robbery, often, nay generally, involving murder, and extending in its operation over the whole globe; and the slave trade, a system even worse, combining as it did remorseless greed and barbarous cruelty inflicted upon scores and hundreds of innocent victims, and the intent of the law was not, and is not, so much to punish or reform the individual offender as it is to break up and destroy the practice. To accomplish this it was matter of stern necessity to make all participation in any act which in its nature aided the main purpose, a grave, and usually a capital offense, punishable with unusual severity, and technical objections could not be allowed to stand in the way of the great purpose to be accomplished.

Does it not seem that, in principle, we have a parallel case? Speaking of the class, the genus tramp, in this country, is a public enemy. He is numerous and he is dangerous. He is a nomad, a wanderer on the face of the earth, with his hand against every honest man, woman and child in so far as they do not, promptly and fully, supply his demands. He is a thief, a robber, often a murderer, and always a nuisance. He does not belong to the working classes, but is an idler; he does not work because he despises work. It is a fixed principle with him that, come what may, he will not work. He is so low in the scale of humanity that he is without that not uncommon virtue among the low of honor among thieves. He will steal from a fellow tramp, if in need of what that'fellow has, and will resort to violence when that is necessary. So numerous has the class become that the members may be said to overrun the improved parts of the country, especially the more thickly settled portions. They beat their way upon railroads, - and other lines of communication, and resent with vicious violence any attempt on the part of the railroad employes and others to drive them off. They plod through the rural districts appearing suddenly at farm houses, and other houses where it is probable that unprotected women and children may be found, and brutally coerce compliance with their demands for food, or whatever else they may desire, terrorizing the people and adding still further discouragements to life in isolated places. It will not be understood that there may not be differences in tramps. There may be. Some may be less worthless and vicious than others; but all pirates were not alike brutal and bloody. We read of one who is said to have been “as mild mannered a man as ever scuttled a ship or cut a throat.” Yet they are all denounced alike as pirates. A specially discouraging feature of the tramp life is that it offers captivating attractions to a class of idle young men, usually dissipated, who become restive under control, and join the tramp army in part from a craving for new scenes and daring adventures, and a license which is denied them in the home neighborhoods. They may at first be somewhat guarded in conduct, but that quite soon disappears and they become as importunate and reckless as the oldest vagrant. Although not connected by any tie which insures honorable treatment one of another, the tramps nevertheless have sufficient organization to maintain a code of signs by which those who follow may know the treatment received by those who have shortly before preceded, and to be advised of places for common rendezvous. They thus are able to avoid locations where the citizens resolutely refuse them, or where the laws are rigidly enforced, and confine their depredations to sections where the people meekly submit, and are enabled to congregate, and they do congregate, in such numbers at agreed points as to become a source of serious menace to the peace and good order of such neighborhoods. The whole system has become so gross an abuse as to require the strong hand of the law for its suppression, and the abuse is so patent that courts, cannot properly refuse to take judicial notice of it. It is to be constantly borne in mind that the act in question is intended to afford some adequate security to the public against dangers to be apprehended from the class described, all of whom, from their want of honest employment, or from their vicious pursuits, may well be considered as dangerous to society. This security cannot be obtained by attempts at enforcing-this or any law if the efforts of the prosecuting officers in the interest of the people are to be overborne by technical and unsubstantial objections. This much as to the necessity of some law. Why not this law?' Is there not sufficient difference between the condition and opportunity of a pauper in his own county,, and the same character abroad, and between the situation of the people of the county where the pauper resides and those of distant neighborhoods, to warrant a legal distinction? In the county of his residence the pauper, when in necessitous circumstances and unable to supply his own physical needs, and he is often in that condition, has the legal right to call upon the poor authorities for support, and those-authorities have the right and the power to use the proper public funds for that purpose. Ordinarily such persons become quite well known and the people are less apt to be terrified by them and induced through fear to yield to their demands than where-they are strangers, and the paupers themselves are-much less likely to become ruffians when at home and. comparatively isolated than when they have burned their bridges, so to speak, and started on a tramp in pastures new, and joined their fortunes with others of like ilk. In short, tramping makes a different character of the same person. And why may they not, when thus grouped, be regarded as a class? The grant of legislative power by section 1, of article 2, of our constitution is as ample as that given congress by the federal constitution as to piracy, and we deem the power broad enough to warrant the general assembly in constituting the tramp a class by himself and legislating for his suppression.

The objection that the act prescribes a cruel and unusual punishment we think not well taken. Imprisonment at hard labor is neither cruel nor unusual. It may be severe, in the given instance, but that is a question for the law-making power. In re Kemmler, 136 U. S., 436; Cornelison v. Commonwealth, 84 Ky., 583. The punishment, to be effective, should be such as will prove a deterrent. The tramp cares nothing for a jail sentence; often he courts it. A workhouse sentence is less welcome, but there are but few workhouses in the state. A penitentiary sentence is a real punishment. There he has to work and cannot shirk.

But it is insisted that the bill of rights is infringed because the act forbids the tramp to bear arms. The question was not involved in this prosecution, but we see no real difficulty in it. The constitutional right to bear arms is intended to guarantee to the people in support of just government such right and to afford the citizen means for defense of self and property. While this secures to him a right of which he cannot be deprived, it enjoins a duty in execution of which that right is to be exercised. If he employs those arms which he ought to wield for the safety and protection of his country, his person and his property, to the annoyance and terror and danger of its citizens, his acts find no vindication in the bill of rights. That guarantee was never intended as a warrant for vicious persons to carry weapons with which to terrorize others. Going armed with unusual and dangerous weapons to the terror of the people is an offense at common law. A man may carry a gun for any lawful purpose, for business or amusement, but he cannot go about with that or any other dangerous weapon to terrify and alarm a peaceful people. Knight’s case, 3 Mod., 117; State v. Huntly, 3 Ired., (N. C.), 418; State v. Roten, 86 N. Car., 701. And statutes punishing such offenses are constitutional. Galvin v. State, 6 Coldw. (Tenn.), 284; Andrews v. State, 3 Heisk. (Tenn.), 165.

Statutes intended to suppress the tramp nuisance have been enacted by a number of the states of the union, notably Vermont, New Hampshire, Massachusetts, Rhode Island, Pennsylvania, Indiana, Iowa and Wisconsin. These statutes are like that of Ohio so far as classification is concerned, and nearly all prescribe a like punishment. All do not make a distinction between acts committed in a county in which the tramp does not reside and similar ones in the county of his residence, but most do. The validity of the Wisconsin statute is doubted in Johnson v. Waukesha Co., 64 Wis., 281, but apparently sustained in Murphy v. State, 86 Wis., 626. That of Pennsylvania where punishment is committal for not more than one year in a workhouse, is apparently sustained in Commonwealth v. Gill, 7 W. N. C., 557. To what extent these acts have been sustained or invalidated by decisions in the other states, we are not apprised, but the enactments themselves indicate that the legislatures of those states have considered that the situation calls for stringent measures of suppression.

We are of opinion that the law in question is one calculated to secure the repose and peace of society,, and that it is not open to the objections made against it.

Exceptions sustained.


author: Williams, J.

text:
    Benner v. Benner.

      Service by publication — Authorized in action by wife for ali-. mony, when — Section 501/8, Rev. Stat. — Action for appropriation of property of deserting, non-resident husband, is one in rem, when — Jurisdiction of court to enjoin disposition, of property by defendant.

    1. Service by publication is authorized by Section 5048 of the Revised Statutes, in an action by a wife for alimony and support of her child against the husband who deserted his family and became a non-resident of the state, where the only relief sought is the appropriation of real property of the husband situated in the county where the action is brought to the payment of the amount that should be allowed for such alimony and support.
    2. Such an action is substantially one in rem: and the court has jurisdiction at its commencement to grant a preliminary injunction preventing the disposition of the property by the defendant pending the suit, and, on completion of the-service by publication to decree the relief sought.
    (Decided October 16, 1900.)
    Error to the circuit court of Columbiana county.
    Suit for alimony, and support of child. Decree for plaintiff, on service by publication, subjecting defendant’s real property within the jurisdiction of the court, to the payment of amount allowed. Judgment affirmed by the circuit court. Affirmed.’
    The case is sufficiently stated in the opinion.
    Billingsley, Taylor & Clarh, for plaintiff in error.

      J. A. Ambler and B. 8. Ambler, for defendant in error.
   Williams, J.

The parties to this suit were married in 18858, in the county of Columbiana where they then resided, and one child was born of the marriage. The husband failed to support the family, left the state, and for more than a year before the commencement of the suit remained wilfully absent, leaving his'family without any means of support. By the death of his father he became the owner of certain real property situated in Columbiana county, and entitled to a distributive share of the personal estate. Thereupon, in May, 1897, the wife commenced the action below in the court of common pleas of Columbiana county, that still being the residence of herself and child, against her husband for alimony, and for the maintenance of the child,then seven years of age. In her petition she set up these facts, specifically described the property, and prayed the allowance, out of the property, of a reasonable amount as alimony, and a sufficient sum .for the support of the child. Upon the filing of the petition a summons and certified copy of the pleading were issued and sent by mail to the defendant at his place of residence, he being then a non-resident of the state. A preliminary injunction was granted to prevent the •defendant from incumbering or disposing of the property. And, in proper time, service by publication was completed and proof thereof duly made to the •court, in conformity with the provisions of the statute. Then, the defendant, disclaiming any intention to enter his appearance to the merits of the action, filed and presented his motion to dismiss the suit, for the reason, as stated in the motion, that the court had no jurisdiction of his person, “he not having entered his. appearance, and summons not having been served on him as required by law.” The court overruled his motion, to which he took exception; and on final submission of the case by the plaintiff, a decree was entered allowing her for her alimony and for the support of herself and child, the sum of two hundred dollars to be paid by a specified day, and the further sum of fifteen dollars per month, payable on the first day of each succeeding month until the further order of the court. These amounts, with costs of suit, were decreed to be a charge upon the real property described in the petition, and it, was adjudged that in default of their payment, the property might be sold at the instance of the plaintiff, and the proceeds applied in payment. And, the preliminary injunction was made perpetual. That judgment, which was affirmed by the circuit court, is attacked here on the general ground that the court, was without jurisdiction to render it. The specific objections urged in argument to the jurisdiction of the court, are (1) that in an action of this kind service by publication is not authorized by statute; (2) that if so authorized, the action is one in personam, of which the court could acquire no jurisdiction by constructive service; and (3) that if it be regarded as an action in rein, there was not a seizure of the property which brought it within the control of the court when the judgment was rendered.

In answer to the first one of these objections, counsel for the defendant in error rely upon section 5048 of the Revised Statutes as furnishing the necessary authority for making service by publication on a defendant who is a non-resident of the state, in an action of this kind. That section provides that service may be had by publication “in actions in which it is sought by provisional remedy to take, or appropriate in any way, the property of the defendant, when the defendant is a foreign corporation, or a non-resident of the state.” The difference between counsel in regard to the construction of this clause-of the statute, relates to the meaning and effect of the phrase “appropriate in any way,” it being claimed in behalf of the plaintiff in error that it is limited to cases of appropriation of property by a provisional remedy, which, it is contended, was not pursued in this, case. It seems, however, if that were its proper construction, the phrase would serve no useful purpose in the statute; for the preceding language includes all cases where property is sought to be taken, in any way, by any provisional remedy; and an appropriation of property is a taking of it. Some light may be thrown on the construction of this clause, by a reference to the statute before it was amended into its. present form. The original provision of the code on the subject authorized service by publication, “in actions brought against a non-resident of the state, or a foreign corporation, having in this state property, or debts owing to them, sought to be taken by any of the provisional remedies, or appropriated in any way.” It would scarcely be claimed, we apprehend, that the original section restricted the right of constructive service on non-residents to cases where the appropriation of property was sought in the prosecution of a provisional remedy. Nor do we think the transposition of the phrase in question to the place: it occupies in the present statute, was intended to, ■or does alter its effect. Supplying what is manifestly implied in the statute, it permits, as did the original section, constructive service on non-resident defendants, in actions in which it is sought by a provisional remedy to take their property, or in which it is sought to appropriate the property in any legal proceeding where such appropriation is proper. The same reason exists for the application of the statute to cases of the latter class, as to those of the former.

If the action below was merely one in personam, the judgment cannot be maintained; for, in such an action the court could acquire no jurisdiction to render judgment without personal service on the defendant, or appearance by him in the action. But if it may properly be regarded as an action in rem, the court could undoubtedly obtain jurisdiction, by constructive service, to appropriate the property of the defendant, situated in the county where the action was brought, to the purposes of the action, though it could render no personal judgment on which a general execution could issue, or an action against him be maintained. It is contended this action was of the former character, because, prior to the rendition of any decree for the subjection of the property to the support of the plaintiff and child, it became necessary for the court to inquire into and determine the existence of the marriage relation, the residence of the plaintiff, the ground alleged for the allowance of the alimony, and the amount to be awarded. Cases are cited to sustain this contention which hold that, though ex parte divorce may be obtained on constructive service, alimony cannot be decreed unless the defendant appear, -or has been served with process within the jurisdiction of the court. So far as we- have examined them, these do not appear to be cases where the defendant had property within the jurisdiction of the court, which it was sought to reach, and have appropriated to the support of the wife, but those only where a general personal judgment for alimony was rendered, or sought. It was said by Mr. Justice Field, in Pennoyer v. NeFf, 95 U. S., 714, 723, that “the state, through its tribunals, may subject property situated within its limits, owned by non-residents, to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the state where the owners are domiciled. ' Every state owes protection to its own citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the state’s jurisdiction over the property of the non-residents, situated within its limits that its tribunals can inquire into that nonresident’s obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the non-resident have no property in the state, there is nothing upon which its tribunals can adjudicate.” In suits for divorce, it is conceded, the court acquires jurisdiction by constructive service on a non-resident defendant, to inquire into the residence of the plaintiff, and the existence of the marriage relation, as wrell as the grounds of divorce, before proceeding to decree; and this is necessarily so, for residence of the plaintiff within the jurisdiction of the court is an essential fact, and the existence of marriage must be established before there can be a judgment for its dissolution. The jurisdiction in such cases is supposed to rest upon the ground that the proceeding relates to and determines the personal status of the parties. But that is equally so in cases like the one before us, and we can discover no sufficient reason why, in such a case, jurisdiction may not be conferred by a like mode of service to inquire into and determine the same facts. The plaintiff in her action below, did not seek, nor obtain, a personal judgment against the defendant. She and her child were residents of the county in which her suit was brought. The specific property she asked to have subjected to her support was situated in that county, and she sought no other relief than its appropriation, or such part of it as might be necessary for that purpose, in fulfillment of the defendant’s obligation to her in that behalf. The action and judgment were substantially in rem, in the sense that their direct object was to reach and dispose of property within the jurisdiction of the court.

Finally, it is insisted that, though the action be one in rem, the property was not, by any process, so brought within the control of the court as was necessary to warrant the judgment rendered. The rule on this subject, and the reason for it, are stated in Pennoyer v. Neff, supra, where it is said, that “Substituted service by publication, or any other authorized form, may be sufficient to inform parties of the object of the proceeding taken, where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizures for its condemnation and sale.” It is not enough that property may be discovered and reached on execution after the judgment is rendered. Control of the property by the court before the rendition of the judgment is essential to the jurisdiction to render it; and if rendered without such jurisdiction, it cannot be made valid by the subsequent seizure of property of the defendant. . But, we do not understand it is necessary, in order to bring the property under the control of the court, that it shall be actually taken on attachment or other writ. Any authorized act by which the court takes charge of property/ or asserts its control over it, is sufficient within the meaning of the rule, for the purposes of jurisdiction. And, though injunction was not the ultimate relief sought by the plaintiff in her action, the preliminary injunction granted her at its commencement, restraining all disposition of the property by the defendant, would be as effectual to apprise him that it was in the custody of the court, as an actual seizure of it on writ. The judgment rendered was made operative only on the property so brought within the control of the court at the beginning of the suit, and is not, in our opinion, void for want of jurisdiction. In Wesner v. O’Brien, 56 Kas., 724, the court went further, and sustained a judgment rendered on constructive service, which appropriated land in that state, of a nonresident defendant, for his wife’s alimony, though the land was not situated in the county where the suit was brought, and no step was taken to bring the property within the control of the court otherwise than by the commencement of the suit and publication of the notice. The court said that the “seizure of the land in such a case is little more than a form. The essential matter is that the defendant shall have legal notice of the proposed appropriation, and this is afforded by the publication notice which warns the defendant that one of the purposes of the proceeding is the sequestration of the land. It refers interested parties to the petition in which the land is definitely described, and wherein it is asked that the land be set apart as alimony. A formal seizure is no more essential to the jurisdiction of the court in a proceeding of this kind, than in an action to quiet title to land based alone on constructive service.” It was held in Blanckington v. Blanckington, 141 Mass., 432, that the courts of that commonwealth had jurisdiction in an action brought therein by the wife for the support of herself and child, to make and enforce an order against the property of the husband in that state, for the payment of a sum of money to her for such support, although the only service, of process on the husband was made in another state to which he had removed, and there was no attachment or seizure of the property before judgment. The jurisdiction in such a case is placed, by the court, upon the ground that the proceeding relates to the status of the parties, and the order for the payment of the money is not founded on an isolated obligation, as in case of contract or tort, but upon a continuing duty of the husband growing out of the marital relation, the enforcement of which is necessary to secure the comfort and' maintenance of the party living within the jurisdiction.

It is perhaps needless to say that thére is a strong tendency on the part of the courts to uphold their jurisdiction in cases of this kind. But, if we are correct in our conclusion that the preliminary injunction served to bring the property involved in this action within the control of the court, there is no defect in the judgment below, in any view that may be taken of the case.

Affirmed.


author: Si-iauck, C. J., Spear, J.,

text:
    The City of Cincinnati v. Fleischer, Admr.

      Municipalities — Care required of them in construction and maintenance of streets and sidewalks — Carriage block near curb not a violation of statute (2640).

    The statute requires of municipalities the exercise of ordinary care in the construction and maintenance of streets and sidewalks; but that duty is not violated by permitting a carriage block of the usual size to occupy the usual position of such blocks, near the curb and not upon that portion of the sidewalk which is designed for the use of pedestrians going upon or passing along the walk.
    (Decided October 16, 1900.)
    Error to the Superior Court of Cincinnati.
    In his lifetime, George H. Bennett, the intestate of Fleischer, recovered a judgment against the city of Cincinnati on account of a personal injury which resulted to him from stumbling over a stepping stone or carriage block, located on a sidewalk of Race street, near the curb. The allegations of negligence in his petition are as follows: “Plaintiff says that the defendant is a city of the first grade of the first class, and is a municipal corporation, duly organized and existing under the laws of the state of Ohio. That heretofore, to-wit: On the 19th day of January, 1898, the defendant wrongfully, willfully, knowingly and negligently caused, suffered and permitted a large stone block about fourteen inches wide and about nine inches high and two and one-half feet long,, to be and to remain upon the sidewalk of Race street, on the west side of said street, between Piftn and Sixth streets, in the said city of Cincinnati, and opposite No. 529 Race street about two feet from the curb of said sidewalk. That the said Race street was then and there for a long time prior thereto, and still is a public street, which is much travelled and used by the citizens of the said city of Cincinnati, and by the public generally. That there was no guard, railing, lights or signs around the said block of stone, and that the said block of stone had been permitted by the defendant to remain upon the said sidewalk as stated, for a long space of time prior to the said 19th day of January, 1898, of all of which, the defendant then and there had due and reasonable notice.
    “That on said 19th day of January, 1898, about 6:20 p. m. of said date, when it was then and there dark; the plaintiff was then and there lawfully travelling on said street, walking south on the west side of the said Race street, and the plaintiff without any default or negligence on his part, and not knowing that the said block of stone was then and there obstructing the said sidewalk, the plaintiff being then and there unable to see said block of stone by reason of the darkness and rain, and of the number of the people carrying umbrellas raised who were then and there using said sidewalk, then and there struck his left foot against the said stone on the said sidewalk and then and there fell, and was then and there severely bruised, etc.”
    The city admitted its corporate character and that Race street was at the time of the plaintiff’s alleged injury, and for a long time prior thereto had heen, a public street; and it denied all other allegations of the petition. On the trial of the issues the city offered no evidence. The plaintiff introduced evidence tending to show that the carriage block was of stone, somewhat smaller than the usual size, and lying only far enough from the curb to permit the hubs and steps of carriages to pass. It was used for the convenience of persons getting into or alighting from carriages. It had occupied substantially the same position for more than fifteen years. At the conclusion of the plaintiff’s evidence counsel for the city requested the court to direct a verdict in its favor which was refused. Other instructions were requested and refused, but they are not material to the view which we take of the case.
    A verdict for the plaintiff having been returned a motion for a new trial was overruled and judgment was entered on the verdict. This judgment was affirmed by the superior court at general term.

      Ellis 6r. Kinhead; Wade H. Ellis; John V. Campbell and E. K. Rodgers, corporation counsel, for plaintiff in error.
    A stepping-stone is not an unlawful obstruction per se. Dubois v. Kingston, 102 N. Y., 219; Louth v. Thompson, 39 Atl. Rep., 1100.
    In the following cases, collected by Shearman & Redfield in their work on Negligence, section 367, note 9, the defendant was held not liable, the court finding the defects or obstructions complained of to be not dangerous. Dubois v. Kingston, 102 N. Y., 219; Ring v. Cohoes, 77 N. Y. 83; Macomber v. Taunton, 100 Mass., 255; Cushing v. Boston, 128 Mass., 330.

      The Supreme Court of Ohio has adopted the same general principle that such obstructions in the sidewalk are not of themselves unlawful. Elster v. Springfield, 49 Ohio St., 82.
    The burden was on the plaintiff below to prove negligence on the part of the city in the manner in which this stepping-stone was permitted to remain on the sidewalk, and that this negligence was the proximate cause of his injury, Shearman & Redfield on Negligence, sec. 57; Parrot v. Wells, Fargo & Co., 82 U. S. (15 Wall.), 524; Huff v. Austin, 46 Ohio St., 386; Wharton on Negligence, 421; Walker v. Chicago, R. I. & P. R. Co., 71 Ia., 658; Spencer v. Campbell, 9 Watts & S., 32.
    . This burden being upon the plaintiff below, it was. necessary for him to prove

      (a) That the stepping-stone was improperly, imprudently or unreasonably located; or,
    (5) That its size or shape was of such an unreasonable character as that it would not have been suffered to remain upon the sidewalk where it lay by an ordinarily prudent and careful person; and if either of these be proved, also,
    (c) That this improper location of the stone, or its. unreasonable shape or size, was the proximate cause of his injury.

      Edmund T. Clayton; Thomas L. Michie and Joel C. Clore, for defendant in error.
    We cite a few authorities selected from an overwhelming number, which establish the liability of municipal corporations in such cases: Merrill v. Hampden, 26 Me., 234; Horton v. Ipswich, 12 Cush., 488.

      What is a defect or want of repair within the meaning of the term as used in such a statute, is a question of fact to be determined by the jury under the instruction of the court upon the circumstances of each particular case. Wait’s Act. & Def., sec. 14, p. 675; Hutchinson v. Concord, 41 Vermont, 271;, Washburn v. Woodstock, 49 Id., 503; Howard v. Mendon, 118 Mass., 585; Winship v. Enfield, 42 N. H., 197; Draper v. Ironton, 42 Wis., 496.
    Dangerous pits, excavations, precipices, wells, stones or other obstructions, situated without the limits of the located highway, but so near it, and so situated that they would, without barriers or guards,, endanger the safety of passengers using the traveled or made part of the road, with ordinary care and diligence, are nuisances. Wait’s Act. & Def., sec. 4, p. 736; Davis v. Hill, 41 N. H., 329; Fisher v. Thirkell, 21 Mich., 1; 4 Am. Rep., 422; Hays v. Gallagher, 72 Penn. St., 136; Atlantic, etc. v. Wood, 48 Ga., 565;. Portland v. Richardson, 54 Me., 46; Loan v. Boston, 106 Mass., 450; Sebert v. Alpena, 78 Mich., 165; McGuire v. Spence, 91 N. Y., 303; Brusso v. Buffalo, 90 N. Y., 679; Weed v. Ballston, 76 N. Y., 333; Gray v. Henry County, 42 S. W., 333; Hinkley v. Rosendale, 70 N. W., 158; Chase County v. Stewart, 3 Kas. App., 403; Groundwater v. Washington, 92 Wis., 56; Slivitzki v. Wien, 93 Wis., 460; Cleveland v. Bangor, 87 Me., 259; Joliet v. Young, 61 Ill. App., 589; Arey v. Newton, 148 Mass., 598: Glantz v. South Bend, 106 Ind., 305; Indianapolis v. Cook, 99 Ind., 10; Sandy Lake View v. Forker, (Pa.), 18 A., 609; Schively v. Jenkinstown, Penn. Sup., 36 A., 754; 180 Pa. St., 196; Am. and Eng. Ency. of Law, Vol. 24, p. 108, and notes; Yeaw v. Town, 15 R. I., 20; Barber v. Roxbury, 11 Allen, 93 Mass., 320; King v. Oshkosh, 75 Wis., 517; Welkins v. Rutland, 61 Ver., 336; District of Columbia v. Boswell, 6 App. D. C., 402; Denver v. Stein, 53 Col., 283; Heckman v. Evenson, 73 N. W., 427.
   Si-iauck, C. J.,

The duty of municipalities with respect to streets and sidewalks is imposed by section 2640 of the Revised Statutes. It is to “cause them to be kept open and in repair, and free from nuisance.” They are required to maintain such portions of them as are designed for the use of vehicles and pedestrians in a condition of reasonable safety for such use. They are not required to exercise such extraordinary care as will absolutely prevent the occurrence of accidents, nor to prohibit such usual erections in proper portions of the streets as public convenience requires.

The block over which the plaintiff below fell, although upon the sidewalk, was not at a crossing nor upon any portion of the street designed for the use of passing pedestrians. It was within that portion of the street by the curb which, according to common knowledge, is devoted to carriage blocks, lamps, hitching posts and shade trees, which pedestrians of ordinary care observe and avoid. There is no reason to question the correctness of the observation of Spear, J., in Elster v. Springfield, 49 Ohio St., 82, 96: “The laying of sewers like that of gas and water pipes beneath the soil, and the erection of lamps and hitching posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose, and long-continued usage.” Any rule which would sustain a recovery in this case would require municipalities to remove all shade trees and all such erections, whatever public inconvenience might result therefrom. In the well considered case of Dubois v. City of Kings ton, 102 N. Y., 219, where the facts shown and the municipal duties involved were, in substance, the same as those which are here presented, a recovery was denied.

The allegations of the petition in this case permitted the presumption that the block was of the usual size, and that it occupied the position usually assigned to such blocks. The evidence offered by the plaintiff showed affirmatively that it was of such usual size, and that it occupied such usual position. Therefore, the petition failed to state a cause of action, and the instruction requested should have been given.

Judgment reversed.

Spear, J.,

dissents. The syllabus assumes that the block stood in the usual place on the sidewalk and in a place where pedestrians were not accustomed to walk. Neither assumption is justified by the record. The stone stood thirteen inches from the curb, instead of at the curb, and was on Race street in Cincinnati, between Sixth street and Shillito Place, a thickly-settled and much frequented business street, where there were likely to be, at certain times of day, crowds of people. In my opinion the law applicable to the facts was correctly given by the presiding judge, and the jury’s verdict was fully warranted by the facts.