author: Jones, J.

text:
    Allion v. The City of Toledo.

      Municipal corporations — Police power — Local conditions and needs — Legislative discretion controls, when — Sise and weight of bread loaves — -Constitutionality of ordinance.

    1. Unless there is a dear and palpable abuse of power, a court will not substitute its judgment for legislative discretion. Local authorities are presumed to be familiar with local conditions and to know the needs of the community.
    2. A city ordinance, fixing standard sizes of bread loaves and prescribing loaves of one pound avoirdupois as the minimum weight that may be manufactured and sold by a baker, is not an unreasonable or arbitrary exercise of police power and is constitutionally valid.
    (No. 15892
    Decided April 15, 1919.)
    Error to the Court of Appeals of Lucas county.
    Plaintiff in error, Clara Allion, being engaged in the bakery business in the city of Toledo, Ohio, was charged in the police court and there convicted of selling a loaf of bread weighing less than one pound avoirdupois weight in violation of a city ordinance regulating the size of loaves of bread to be sold within the city of Toledo. The ordinance provided:
    “That every loaf of bread made or procured for the purpose of sale, sold, offered or exposed for sale within the City of Toledo shall weigh a pound avoirdupois (except as hereinafter provided) and such loaf shall be considered the standard loaf in the City of Toledo. Bread may also be made or exposed for sale in one pound, one and one-half pound, two pound, two and one-half pound, three pound, and three and one-half pound, four pound, four and one-half pound, five pound, five and one-half pound or six pound loaves and in no other way. * * * That if any person, firm or corporation shall make or procure for the purpose of sale, sell, offer or expose for sale within the City of Toledo any bread which contains a deleterious substance or material, any bread the loaf or loaves of w'hich are not standard pound, pound and one-half, two pound, two and one-half pound, three pound, three and one-half pound, four pound, four and one-half pound, five pound, five and one-half pound or six pound loaf, as defined in Section 2 hereof, or any bread which is not made in a clean and sanitary place; or shall make or procure for the purpose of sale, sell, offer or expose for sale, within the City of Toledo, any standard loaf or loaves of bread which do not weigh one pound each, or any bread the loaf or loaves of which do not weigh as much as the weight mark on the label thereon, or any bread the loaf or loaves of which do not have affixed thereon the label marked, as provided in Section 2, such person, firm or corporation, shall be fined not less than $10.00 nor more than $100.00 for each offense.”
    The judgment of conviction in the police court was reversed by the court of common pleas. The court of appeals reversed the judgment of the court of common pleas and affirmed the judgment of conviction in the police court. Error is now prosecuted in this court.

      Mr. George A. Bassett; Mr. R. S. Holbrook and Mr. C. R. Banker, for plaintiff in error.

      Mr. Ralph Emery, director of law, and Mr. Chas. T. Lawton, assistant director of law, for defendant in error.
   Jones, J.

It is contended on behalf of the plaintiff in error that the city ordinance contravenes Section 1, Article I of the Ohio Constitution, and Section 1, Article XIV of the Federal Constitution. The fundamental guaranties of these two sections protect the right of private contract and the freedom of engagement in lawful business. However, there are various callings, though lawful and useful, which are subject to surveillance of and regulation by the state in the interest of the health,- safety or welfare of the community. That bakeries may be so regulated and the state’s police power invoked for that purpose is not open to question. This right of regulation is now generally conceded in both state and federal jurisdictions. Therefore the only question remaining, and the one here urged, is that the city council of Toledo, in the passage of this ordinance, clearly abused-its power, and that its action was a palpable and unwarranted interference with, the business of plaintiff in error.

The record discloses that the plaintiff in error, at the time of the accusation, daily baked and sold five large loaves of 21^ ounces each, and seventy loaves, each weighing from 11 to Ilf ounces. The minimum standard loaf prescribed by the ordinance was one pound avoirdupois. The proof discloses the sale of a loaf weighing 1 If ounces. The amount of deficiency therefore between the standard used by the baker and that adopted by the city council ranged from 4J ounces to 5 ounces. While Toledo is a large city, the record does not disclose any demand for bread loaves smaller than the minimum legal standard, other than the seventy loaves daily manufactured by the accused and sold to her customers. The grievance of the plaintiff in error is that by the adoption of the standard loaf the city council deprived her of the right to bake a loaf less than one pound avoirdupois, and that this deprivation was wholly unwarranted and the power so exercised was unreasonable and arbitrary.

An ordinance fixing manufactured standard loaves of bread at one, two and four pounds avoirdupois weight, and no other, was held constitutionally valid by the supreme court of Michigan. People v. Wagner, 86 Mich., 594.

An ordinance similar to the Toledo ordinance was passed by the city council of Chicago, Illinois, permitting the manufacture of one-half pound loaves, as the minimum, and sextuple, or six pound loaves, as the maximum, weight that could be baked. This ordinance was sustained by the supreme court of Illinois in Chicago v. Schmidinger, 243 Ill., 167. This case eventually reached the supreme court of the United States, Schmidinger v. Chicago, 226 U. S., 578, where the judgment of the Illinois court was affirmed. While in the present case the ordinance prescribing the minimum standard loaf is attacked because the same is from four to five ounces heavier than her customers’ trade demanded, in the Chicago case the attack was launched for the reason that the sextuple or six pound loaf was the maximum weight permitted to be made and sold in the city, although there was a considerable demand in some parts of the city for bread in weights different from those prescribed by the ordinance. As stated by Mr. Justice Day in that case: “In some parts of the city bread weighing seven pounds is commonly sold.”

Unless there is a clear and palpable abuse of power the court will not substitute its judgment for legislative discretion. The local authorities acquainted with local conditions are presumed to know what the needs of the. community demand.

“Local legislative authorities, and not the courts, are primarily the judges of the necessities of local situations calling for police regulation, and the courts can only interfere when such regulation arbitrarily exceeds a reasonable exercise of authority.” Schmidinger v. Chicago, supra.

In prescribing the standard one pound loaf as the minimum which could be manufactured and sold by the baker, this court cannot say that the fixing of that standard, in the exercise of legislative discretion by the council, was so unreasonable and arbitrary as to require judicial interference. The ordinance is therefore constitutionally valid, and the judgment of the court of appeals is affirmed.

Judgment affirmed.

Matthias, Johnson and Wanamaker, JJ., concur.

Nichols, C. J., Donahue and Robinson, JJ., dissent from second proposition of the syllabus and from- the-judgment.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    The Ohio River Power Co. v. The City of Steubenville.

      Municipal corporations — Authority to fix electric light rates— Acceptance of ordinance by company constitutes contract, when — Public utilities commission has no jurisdiction thereof, when — Section 614-47, General Code — Constitutional power to contract— Section 4, Article XVIII, Constitution, 1912.

    1. The council of a municipality has authority to fix the price that an electric light company may charge the city or its inhabitants for electric current for light and power purposes. {City of Washington v. Public Utilities Commission, ante, 70, approved and followed.)
    2. Where the price of such electric current for light or other purposes is fixed by ordinance for a period not exceeding ten years, and the electric light company files in the office of the auditor or clerk of the corporation its written acceptance, such ordinance and acceptance in writing constitute a contract between the municipality and the electric light company binding on both parties thereto during the term named in the ordinance.
    3. By the provisions of Section 614-47, General Code, such contracts are specifically exempted from the operation of the statutes of this state defining the powers and duties of the public utilities commission of Ohio in relation to the rate, price, charge, toll or rental that such public utility may charge, demand, exact or collect for any service rendered, or to be rendered by it.

      4. A contract entered into between a public utility and a municipality of this state, whereby the public utility agrees to supply its product or service to the municipality or its inhabitants for a period of ten years, at a rate, price, charge, toll or rental specified in such contract, is expressly authorized by Section 4, Article XVIII of the Constitution of Ohio, and is valid and binding upon the parties thereto, unless disapproved by a majority of the electors voting thereon, at a referendum election held under the provisions of Section 5, Article XVIII of the Constitution of this state.
    (No. 16073
    Decided April 29, 1919.)

      Error to the Court of Appeals of Jefferson county.
    On the 19th day of January, 1917, The Steuben-ville & East Liverpool Railway & Light Company transferred its property, franchises, and contracts, in so far as the same applied to the lighting and power business formerly carried on by it, to The Ohio River Power Company. This transfer included contracts with the city of Steubenville, dated, respectively, the 13th and 15th of October, 1915, for furnishing light and power to the city, and to private consumers, for a period of ten years from the date thereof.
    In 1915, the former contract of The Steubenville & East Liverpool Railway & Light Company with the city of Steubenville, Ohio, for the furnishing of electric current for light and power, expired, and on the 25th day of May, 1915, the city council of the city of Steubenville passed an ordinance authorizing the director of public service to advertise for bids for city lighting and power, and for light and power to be furnished the inhabitants of the city.
    The Steubenville & East Liverpool Railway & Light Company submitted bids covering both of these propositions, and on the 12th day of October, 1915, the council of the city of Steubenville passed an ordinance accepting the bid for the furnishing of light and power to the city and authorizing the director of public service on behalf of the city of Steubenville to enter into a contract with The East Liverpool Railway & Light Company to furnish the city with light and power at the rate named in the bid, for a period of ten years; which contract was executed on the following day.
    On the same day, October 12, 1915, the city council passed an ordinance fixing the price of electric current for light and power to private consumers for the ensuing ten years in accordance with the bid of The Steubenville & East Liverpool Railway & Light Company, and on the 15th day of October, 1915, that company, by its board of directors, accepted the terms and conditions of this ordinance, and filed its notice of acceptance with the city auditor and cleric of council, and also with the public utilities commission.
    The Steubenville & East Liverpool Railway & Light Company entered upon the performance of these contracts, and continued to perform until the same were sold and transferred to The Ohio River Power Company in January of 1917. The Ohio River Power Company continued to furnish service to the city and to private consumers under.the terms and conditions of these contracts until November 22, 1917, at which time it filed new schedules, increasing the rates for electric current for power purposes.
    On the 30th day of January, 1918, the city of Steubenville commenced an action in the common pleas court of Jefferson county to enjoin The Ohio River Power Company from putting these increased rates into effect. A temporary injunction was allowed, which, upon final hearing, was made perpetual. An appeal was taken to the court of appeals of Jefferson county, which court entered a like order, enjoining the defendant from increasing the rates for electric current for power fixed by the contracts with the city of Steubenville for and during the term of ten years next after the date of these contracts.
    This proceeding in error is brought to reverse the judgment of the court of appeals.

      Mr. W. McD. Miller; Mr. M. F. Millikan and Mr. J. P. Van DeVoort, for plaintiff in error.

      Mr. C. L. Williams, for defendant in error.
   Donahue, J.

It is contended on behalf of the plaintiff in error that the council of a municipality has no authority to fix the price at which it shall require a company to furnish electric current for power purposes, or to,make of to enter into any contract that will prevent the state from exercising its rate-making power during the time such contract is in force.

This court recently held in the case of the City of Washington v. The Public Utilities Commission of Ohio, ante, 70, that the council of a municipality has authority to fix the price of electric current for power, and were it not for the fact that this question was not necessarily controlling in that case, and that the opinion is per curiam and without syllabus, it would be wholly unnecessary to write this opinion, for the judgment in that case is decisive on this question.

While it is undoubtedly true that grants of power must be strictly construed, that the enumeration of certain powers presupposes the exclusion of all others, and that an incident to a grant does not imply a grant of power, yet these rules of construction must not be carried beyond the reason for their existence.

Section 3983, General Code, is so closely related to Section 3982, General Code, that it must be read in connection with that section as an aid in determining the intent and purpose of the general assembly of Ohio in enacting Section 3982. Section 3983 clearly contemplates the power of the municipal council to fix the price of electric current, not only for lighting purposes, but for all other legitimate purposes, for a period not exceeding ten years, when assent in writing is filed by the company in the office of the auditor or clerk of the corporation. There is no better way to determine the intent and purpose of the legislature than by its own construction of the language used. In Section 3983 the general assembly of Ohio has by the words “for other purposes” given its interpretation of the extent of the rate-making power intended to be granted to municipalities. This intent further appears from the language used in Sections 9195 and 9321, General Code, which authorize electric light companies to manufacture and supply electricity for light, heat, and power purposes, and sell the same with the consent of the municipality.

That this is no strained construction of Section 3982, General Code, is evidenced by the provisions of Section 614-2, General Code, defining an electric light company as a company “engaged in the business of supplying electricity for light, heat or power purposes to consumers within this state.”

If we were to insist upon a narrow and technical definition of the word “light,” an electric light company must necessarily be defined as a company that furnishes electric current for lighting purposes only; but the general assembly by enacting Section 614-2, General Code, has expanded the ordinary meaning of the word “light,” as used in the designation “electric light company,” to include companies furnishing electricity for heat or for power, or for light, or for all or either of these.

If an electric light company means a company that furnishes current for light, or heat, or power, all of these things must have been within the contemplation of the general assembly when it enacted Sections 3982 and 3983, General Code. But, even if Section 3982 were not subject to this construction, Section 3983, independent of Section 3982 and independent of all other legislation upon this subject, authorizes a contract of this character, and provides in detail how such contracts shall be executed.

Section 3982 does not contemplate a contract. On the contrary, it grants arbitrary power to the council to fix rates from time to time, regardless of the consent of the utility; but Section 3983 provides, in terms, that when an ordinance has been passed fixing the rate for electric current for lighting the streets, or other purposes, for a definite term not exceeding ten years, and written acceptance has been filed by the company in the office of the auditor or clerk of the corporation, the power granted to council by Section 3982 shall be suspended during the term named in the ordinance.

The provisions of Section 3983 are not merely incident to the power granted in Section 3982, but confer specific authority upon the council of any municipality to fix rates for a period not exceeding ten years by contract with the utility furnishing electric current for light, or for other purposes.

This is a distinct and different method than the method of fixing rates from time to time by the exercise of the arbitrary power conferred by Section 3982, regardless of the assent of the utility.

Section 614-44, General Code, specifically authorizes municipal corporations to fix by ordinance the price, rate, charge, toll, or rental, that a public utility of this character may charge, demand, exact, or collect therefor, for an ensuing period, as provided in Sections 3644, 3982 and 3983, General Code, and also provides for the filing of acceptance of such rate by the company, as provided in Section 3983, General Code; and Section 614-47 expressly provides that the utilities act shall not apply to prices fixed under authority of these sections.

This court has repeatedly held that the filing of such acceptance constitutes a contract between the municipality and the company, for the period of ten years; so that here we are dealing with -two contracts between the parties to this litigation, one in relation to the electrical current furnished to the city for lighting and power purposes, and the other for current furnished the citizens of Steubenville for the same purposes.

Even if it were conceded that the statutes of this state do not confer power upon the council of a municipality to fix arbitrarily, or by contract, the rate an electric light company might charge for electric current for power purposes; nevertheless, Section 4, Article XVIII of the Constitution, as amended 1912, expressly authorizes a municipality to contract with any public utility, the product or service of which is to be supplied to the municipality or its inhabitants. While this section does not authorize the municipality to fix an arbitrary rate to be charged by a public utility for the commodity it furnishes to the municipality or its inhabitants, it does clearly authorize a contract between the municipality and the utility, and that contract would necessarily include the price to be paid for service or commodity to be furnished by the utility. Therefore, when the utility names the rate at which it is willing to furnish its product, and the city accepts that rate on its own behalf and on behalf of its inhabitants, and enters into a contract, the terms of which include the rate so agreed upon, such contract, including the agreement as to rate, clearly comes within the authority conferred upon municipalities by Section 4, Article XVIII of the Constitution of Ohio; and if there were any conflict between the provisions of the Constitution and the provisions of any statute of this state existing at the time or enacted since this constitutional amendment was adopted such statute must fall. It would therefore be idle to discuss whether there is or is not any statute in conflict with this constitutional provision, for it could avail nothing in determining the validity of these contracts.

This court having reached the conclusion that these contracts are valid and subsisting contracts between the city of Steubenville and The Ohio River Power Company, it follows that the courts have jurisdiction to enforce the contracts as written.

Judgment affirmed.

Nichols, C. J., Jones, Matthias, Johnson, Wanamaker and Robinson, JJ., concur.


author: Matthias, J.

text:
    The Patterson Foundry & Machine Co. v. The Ohio River Power Co.

      Act of legislature — Date of passage defined — Effect of postponing date of operation — Public utilities commission act — Contracts for service controlled thereby, when.

    1. The date of the passage of an act is the date of the last action .required to complete the process of legislation and give the bill the force of law.
    2. Where a future time is named in an act when it shall become effective, it will speak and operate only from that time unless a different intention is manifested.
    3. The public utilities act (102 O. L., 549) was passed June 14, 1911, and any contract for service entered into by a public utility and its patron subsequent to that date is subject to the supervision of the public utilities commission, and is not binding and enforceable in so far as it conflicts with the rates established through the commission.
    (No. 16175
    Decided April 29, 1919.)
    Error to the Court of Appeals of Columbiana county. ...
    The plaintiff in error was plaintiff, and defendant in error was defendant, in the court of appeals, and will be hereafter referred to as plaintiff and defendant, respectively.
    From the pleadings and the evidence the court of appeals found the following facts:
    “Plaintiff is a manufacturing coriipany located at the City of East Liverpool, Ohio, using in its business both light and power.
    “Defendant is a public utility company, also located at the City of East Liverpool, Ohio, and is engaged in the business of producing and selling electric light and power, under a franchise granted by said City of East Liverpool, and is the only public utility engaged in such business at said City of East Liverpool.
    “Prior to the 30th day of June, 1911, some negotiations and correspondence had passed between The Patterson Foundry & Machine Company and The Tri-State Railway & Electric Company, a public utility, then furnishing electric light and power in East Liverpool under a franchise granted by the city; and on the 30th day of June, 1911, these parties entered into a contract in writing whereby The Tri-State Railway & Electric Company agreed to supply electric power to the Patterson Company for tlxe purpose of propelling certain electric motors at its plants, at certain rates stipulated in said contract. This contract was for a period of two years with the privilege on the part of the Patterson Company óf renewing it for ah additional ten year term. This privilege was afterwards exercised by the Patterson Company and said contract by its terms does'not expire until 'Juné 10th, 1923.''

      “Thereafter, as soon as electric motors could be obtained, the Patterson Company took out its steam equipment and installed electric motors in its plants as provided in said contract and has ever since operated said plants exclusively with electric power furnished by said Tri-State Company and its successors in the ownership and operation of the local franchises; that the Tri-State Company was a lessee company and some time after said contract passed into the hands of receivers appointed by the United States District Court for the Northern District of Ohio, and the property and franchises of said company were afterwards returned to its lessor, The East Liverpool Traction & Light Company, by order of said court, but with the express condition that The East Liverpool Traction & Light Company should assume and carry out all existing contracts of said Tri-State Company; that the contract in question in this case was carried out without question, first, by said Tri-State Company as long as it was in charge, and thereafter by The East Liverpool Traction & Light Company, as long as it continued to own said property, to-wit, for about six years; that on the first day of February, 1917, The East Liverpool Traction & Light Company sold its lighting and power properties, including its local franchise, to The Ohio River Power Company, the defendant in error; that one of the conditions of said sale Was that said defendant in error should carry out and perform'all outstanding •contracts for which The East Liverpool Traction & Light Company was then obligated;

      “In the month of June, 1917, defendant requested plaintiff to pay for its electric light and power according to the schedule of rates then .on file with the Public Utilities Commission, which rates were then higher than the rates provided for in said contract.
    “Plaintiff refused to pay for its electric light and power according to the rates then on file with the Public Utilities Commission of Ohio, claiming that it should pay according to the rates provided for in said contract.
    “Defendant then notified plaintiff that defendant would furnish light and power to plaintiff for the month of June, 1917, and thereafter, at the rates on file with the Public Utilities Commission of Ohio and not at the rates named in said contract, and that if plaintiff would not pay according to the rates on file with the Public Utilities Commission of Ohio, defendant would discontinue furnishing electric light and power to plaintiff and would disconnect the electric lines to plaintiff’s manufacturing plant.
    “The Patterson Company is an extensive manufacturer of steel and iron products, operating two plants in the City of East Liverpool. Said plants are equipped for the use of electric power only. The defendant in error is the only source supplying such power in said city and the Patterson Company could not replace its electric with steam' power without much delay and great loss and expense.”
    The court of appeals held that said contract entered into June 30, 1911, is not binding upon the parties hereto, and rendered judgment for the defendant, from which judgment error is now prosecuted in this court.

      Messrs. Brookes & Thompson, for plaintiff in error.

      Mr. William H. Vodrey, for defendant in error.
   Matthias, J.

The question presented by the record in this, case is whether the contract entered into by the plaintiff and the predecessor of the defendant is a binding and enforceable contract. It was executed June 30, 1911, and stipulated the price for electric current to be furnished the plaintiff for a period of two years, and a further period of ten. years at the option of plaintiff, which option was exercised at the proper time.

The legality of this contract turns upon the construction of the public utility law, and particularly the language used in Section 614-19, of the General Code. That section reads:

“The furnishing by any public utility of any product or service, at the rates, and upon the terms and conditions provided for in any existing contract, executed prior to the passage of this act, shall not be construed as constituting a discrimination, or undue or unreasonable preference, or advantage within the meaning specified.

“Provided, however, that when any such contract or contracts are or become terminable by notice, the commission shall have power, in its discretion, to direct by order, that such contract or contracts shall be terminated as and when directed by such order.”

The public utilities act of which this section is a part was passed by the legislature May 31, 1911 (102 O. L., 549). It was presented to the governor on June 2, 1911, and was not signed or returned to the house wherein it originated within ten days after being so presented, exclusive of Sundays and the date it was presented, and was filed in the office of the secretary of state June 21, 1911. By Section 90 of this act it is provided that the “act shall take effect and be in force from and after June 30, 1911.”

It is contended by couns.el for plaintiff that by the provision just referred to no part of said act had. any life or validity whatever until July 1, 1911, and that the contract in question was not violative of any law in force and effect on June 30, 1911, when such contract was executed.

The legislature had full authority to make the entire act effective immediately upon its passage, and the date of the passage of the act is the date of the last act necessary to complete the process of legislation and give the bill the force of law. 1 Sutherland on Statutory Construction (2 ed.), Section 172, and Cordiner v. Dear et al., 55 Wash., 479.

Under the provisions of our constitution, before a bill passed by both houses may become a law it shall be presented to the governor and if he approves the same it thereupon becomes a law. If it is not approved and signed by him, and is not returned to the house where it originated within ten days after having been presented to him, exclusive of Sundays and the day it was presented, it becomes a law in like manner as if signed. The passage of this measure was, therefore, complete on June 14, 1911, and consequently upon that date it became a law. The legislature in this instance, for reasons presumably satisfactory to itself, postponed' the date upon which the entire act should take effect and be in force to July 1, 1911.

The purpose of this legislation was not only to prevent a public utility from demanding unjust or unreasonable charges for its service, but to prevent it from giving undue or unreasonable preference or advantage to any person or corporation over others, or from receiving a greater or less compensation for service rendered or to be rendered than it receives from others for a like service under substantially the same circumstances and conditions. It sought to prevent unjust discrimination or preference, whether made by contract or otherwise, and to obviate conditions which had previously existed whereby public utilities had been permitted to grant favors to some customers at the expense and to the detriment of others. This act prohibits a public utility from charging in any instance a rate different from that specified in the schedule filed with the commission under the requirements of this act, and also from extending to any person, firm or corporation any privilege not uniformly extended to all under like circumstances; and it requires that every public utility file with the commission a copy of any contract relating to any service, rate or charge. The general provisions of the act are broad and comprehensive and apply to all contracts no matter when made, and prohibit the furnishing of service in any instance upon terms other than those set forth in the schedule required to be filed with the commission. The legislature might have exempted from the operation of the provisions of the act any contract executed prior to July 1, 1911, the date upon which the act as an entirety should go into effect, but it chose to exempt only such contracts as had been executed prior to the passage of the act, and to make that portion of the act effective immediately upon its passage, so that preferential contracts could not thereafter be entered into and by reason thereof exemption claimed from the requirements of the law.

This law was in existence at the time the contract in question was made, or, to put it the other way, when this law was passed the contract in question here had not been executed. This bill not having been signed by the governor became a law at the expiration of the designated period after presentation, which was June 14, 1911. It is well settled that where a time in the future is stated in an act when it shall take effect and be in force it has effect and speaks only from that time. But that rule applies only where a contrary intention is not manifested in the act itself. Here a contrary intention is expressly stated, and a valid statute should have effect in accordance with the purpose and intent of the law-making body which enacts it. The purpose of the legislative body is clear and manifest, that though the full machinery for enforcement of the provisions of the act should not be set in motion until July 1, 1911, only contracts executed prior to the passage of the act should not be construed as constituting a discrimination or undue or unreasonable preference or advantage within the meaning of such act; and it precluded the execution of contracts subsequent to the passage of the act, which otherwise would escape the inhibitory provisions of the act'and in a measure thwart its very design and purpose.

The judgment of the court*of appeals affirmed.

Judgment affirmed.

Nichols, C. J., Jones, Johnson, Wanamaker and Robinson, JJ., concur.


text:
    The State, ex rel. Hall, Supt. of Banks, v. Donahey, Auditor of State.

      Constitutional law — Blue sky law — Sections 6373-1 to 6373-24, General Code — Stocks, bonds and securities — Licensing and supervision of dealers therein.

    (No. 15164
    Decided September 10, 1918.)
    In Mandamus.

      Mr. Edward C. Turner, attorney general, for relator.

      Mr. Henry S. Ballard, assistant attorney general, and Mr. John A. Shauck, for respondent.
   It is ordered by the court that the petition in mandamus in this cause be, and the same hereby is, dismissed without record; the questions at issue herein having been decided by the supreme court of the United States in the case of Hall, Supt. of Banks, v. Geiger-Jones Co., 242 U. S., 539.

Petition dismissed.


text:
    Warner v. The Erie Railroad Co.

      Court of appeals—Finding constitutes reversal on weight of evidence, when—Contributory negligence.—Question of fact for jury, when.

    (No. 15870
    Decided December 10, 1918.)
    Error to the Court of Appeals of. Cuyahoga county.

      Messrs. Howell, Roberts & Duncan, for plaintiff in error.

      Messrs. Cook, McGowan, Foote, Bushnell & Lamb, for defendant in error.
   This court finds from the record and the entry of the court of appeals that the judgment of that court is in effect a determination by that court that the judgment of the court of common pleas was against the weight of the evidence on the issue of contributory negligence, and this court finds from the record that it was the function of the jury to weigh the evidence on that issue as well as the other issues in the case.

It is, therefore, ordered and adjudged by this court, on the authority of Stugard, Admr., v. P., C., C. & St. L. Ry. Co., 92 Ohio St, 318, that the judgment of the court of appeals be, and the same is hereby, modified so as to provide that the judgment of the court of common pleas be reversed on the ground that the verdict of the jury, and the judgment entered thereon, was against the weight of the evidence, and the cause is remanded to said court of common pleas for further proceedings according to law.

Judgment modified and cause remanded.

Nichols, C. J., Wanamaker, Newman, Matthias and Johnson, JJ., concur.


text:
    The State, ex rel. McGhee, Atty. Gen., v. The Morgan Run Ry. Co. et al.

      Railroads — Common carriers, when — Duty to furnish service — Coal and mining company cannot operate road, when — Public titilities commission — Jurisdiction.

    (No. 16041
    Decided December 10, 1918.)
    In Mandamus.

      Mr. Joseph McGhee, attorney general; Mr. C. A. Radcliffe and Mr. W. S. Merrell, for relator.

      Messrs. Booth, Keating, Pomerene & Boulger, for respondents.
   The court finds that the order of this court in cause No. 15806 [98 Ohio St., 218], upon which the present proceeding is predicated, after requiring the furnishing of the service described therein, contained the following:

“This order to be effective over the portion of the line of railroad claimed by The Morgan Run Coal & Mining Company during such period as said Railway Company operates or permits to be operated its line of railroad in connection with the portion of said line claimed by said Coal & Mining Company.” [Journal 28, page 59.]

The court further finds that The Morgan Run Railway Company is a railroad company duly created and organized under the laws of Ohio; that as such it has constructed and owns a line of railway which extends south from its connection with the tracks of the Wheeling and Lake Erie Railway Company in Coshocton county, Ohio, for a distance of about one mile; that said railway company is a common carrier, under obligations to servé the public without discrimination and amenable to the supervision of the Public Utilities Commission; that said line of railroad is impressed with a public interest.

The question of the title of the portion of the line of road claimed by The Morgan Run Coal & Mining Company, defendant in said cause No. 15806, was not presented and decided in that case.

The court finds that said Railway Company has not furnished any service to the complainants in the original cause since the order of this court, April 9 [2], 1918; and from the statements in the answer of defendants in this proceeding, it is shown that since that date said Railway Company has permitted said Coal & Mining Company to move its empty and loaded cars over and along its said line of railway to the connection with the tracks of the Wheeling & Lake Erie Railway Company; that as to so much of the line of railroad as is hereinbefore found and conceded to be owned by the Railway Company, said Coal & Mining Company is using for its own private purposes a line of railroad which has become clothed and impressed with a public use in violation of law. It cannot accomplish by indirection that which it is not permitted to do directly.

It is further ordered that the writ of mandamus issue from this court commanding said defendants, and officers thereof, to comply with the former order of the Public Utilities Commission of Ohio, as modified by this court, in the language above quoted.

On March 11, 1919, the court made the following entry on its journal. — Reporter.

It is ordered and adjudged by the court sua sponte in the above case that the order and judgment of this court made in said cause, December 10, 1918, be and the same is hereby amended by the addition of the following thereto, viz:

Said Morgan Run Coal & Mining Company is ordered from and after this date to wholly cease to move its locomotives, cars and equipment, or any part thereof, over the track and line of railway owned and constructed by The Morgan Run Railway Company from its connection with the tracks of The Wheeling & Lake Erie Railway Company, as hereinabove described, which the court has found to be clothed and impressed with a public use, and which the said Coal & Mining Company has no authority in law to operate in any way. Said Morgan Run Railway Company is ordered and directed from and after this date to cease to permit, directly or indirectly, the said Morgan Run Coal & Mining Company, or any other person or corporation, to operate its said line of railway in any manner, or to move locomotives, cars or equipment thereon, unless such other company shall have been duly created and organized under the laws of Ohio as a common carrier railroad company, and said defendant companies are ordered to in all other respects obey the former order of this court in this cause and in cause No. 15806 heretofore decided by this court.

Writ to issue.

Nichols, C. J., Wanamaker, Newman, Matthias and Johnson, JJ., concur.


text:
    Capital City Dairy Co. v. Amicon et al., Partners.

      Remittitur — Common pleas court may order same, when.

    (No. 15873
    Decided December 17, 1918.)
    Certified by the Court of Appeals of Franklin county.

      Mr. Daniel H. Sowers; Mr. James A. Allen and Mr. Frank Tossey, for plaintiff in error.

      Messrs. Wilson & Rector, for defendants in error.
   Judgment affirmed on authority of The Pendleton Street Rd. Co. v. Rahmann, 22 Ohio St., 446.

Judgment affirmed.

Nichols, C. J., Jones, Johnson and Donahue, JJ., concur.


text:
    Ammon et al. v. Horn, Auditor, et al.

      County commissioners — Improvement proceedings — Remedy of person aggrieved —Injunction does not lie, when — Assessments, penalties and costs of litigation.

    (No. 15990
    Decided February 11, 1919.)
    Error to the Court of Appeals of Lorain county.

      Messrs. Stroup, Fauver & Rice, for plaintiffs in error.

      Mr. G. B. Findley, for defendants in error.
   It is ordered and adjudged by this court, that the judgment of the court of appeals be, and the same is hereby, affirmed, for the reason that it appears expressly and affirmatively from the petition, that the improvement petitioned for was completed in accordance with the plans and specifications and the order of the county commissioners in reference thereto. There being no departure from the plans and specifications and the order of the commissioners in the construction of such improvement, the plaintiffs in error are not entitled to any relief in this action, but their relief, if they were or are entitled to any, should have been obtained in the manner provided by statute when the order of the commissioners was made and entered granting said improvement.

And this cause coming on further to be heard upon the application of the plaintiffs in error to order that the penalties chargeable on account of the non-payment of the assessment be remitted, and that the costs in the court of appeals and in this court be apportioned among the parties hereto, the court finds that the issue of law presented by the pleadings in this action is a question that was not free from doubt, and one upon which the several courts hearing the same have differed, and that the action was brought by the plaintiffs in good faith, and that they were entitled to litigate the same without incurring the penalties chargeable.

It is therefore ordered and adjudged, that upon the payment of the assessments mentioned in the petition within thirty days from the entry of this decree, that no penalties be charged thereon, and the same are hereby specifically remitted.

It is further ordered and adjudged, that the plaintiffs in error pay the costs expended by them in the court of appeals of Lorain county and in this court, and that the defendants in error pay the costs expended by them in the same courts, for all. of which execution is awarded.

Judgment affirmed.

Jones, Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.


text:
    Gilder v. The Industrial Commission of Ohio.

      Workmen’s compensation — Appeal to common pleas court — Employe of interstate employer — Award denied by industrial commission.

    (No. 16020
    Decided February 11, 1919.)
    Error to the Court of Appeals of Lorain county.

      Mr. G. C. Hafley, for plaintiff in error.

      Mr. Joseph McGhee, attorney general; Mr. H. Stanley McCall and Mr. G. B. Findley, prosecuting attorney, for defendant in error.
   Judgment affirmed on authority of Reinholz, Gdn., v. The Industrial Commission of Ohio, 96 Ohio St., 457.

Judgment affirmed.

Nichols, C. J., Jones, Matthias, Donahue and Robinson, JJ., concur.

Johnson, J., not participating.


text:
    Wright et al. v. Longanecker.

      Malicious prosecution — Charge to jury — Probable catise.

    (No. 16069
    Decided February 11, 1919.)
    Certified by Court of Appeals of Montgomery county.

      Messrs. James & Coolidge; Messrs. McMahon & McMahon; Mr. Chas. D. Bronson and Mr. Robert K. Landis, for plaintiffs in error.

      Messrs. Mattern & Brumbaugh and Mr. W. H. Miller, for defendant in error.
   Judgment affirmed on authority of Ash et al. v. Marlow, 20 Ohio, 119.

Judgment affirmed.

Nichols, C. J., .Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.


text:
    Graff, Exrx., v. Graff.

      Alimony — Husband's estate not liable therefor, when.

    (No. 15847
    Decided February 25, 1919.)
    Error to the Court of Appeals of Inching county.

      Mr. A. A. Stasel and Messrs. Flory & Flory, for plaintiff in error.

      Mr. Phil B. Smylhe; Messrs. Fitzgibbon, Montgomery & Black and Messrs. Kibler & Kibler, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed upon authority of Lockwood et al. v. Krum, Admr., et al., 34 Ohio St., 1, and this court coming to render the judgment upon the facts admitted, that the court of appeals should have rendered, it is hereby ordered and adjudged that the estate of George Graff be, and the same is hereby, released from the payment of alimony in the sum of $25.00 per month from and after the date of the death of George Graff, to-wit: February 13, 1916.

Judgment reversed and judgment for plaintiff in error.

Jones, Matthias, Johnson, Donahue and Wanamaker, JJ., concur.

Nichols, C. J., dissents.

Robinson, J., not participating.


text:
    Pollitz et al. v. The Public Utilities Commission of Ohio.

      Public utilities commission — Railroads — Stocks and bonds — Expenditures authorised to be capitalised — Section 614-53, General Code.

    (No. 15968
    Decided February 25, 1919.)
    Error to the Public Utilities Commission.

      Messrs. Snyder, Henry, Thompson, Ford & Sea-grave, for plaintiffs in error.

      Mr. Joseph McGhee, attorney general; Mr. C. A, Radcliffe and Mr. S. H. West, for defendant in error.

   The court finds, that the expenditures set forth in Exhibit A, which were the basis for the issue of the stock, authorization of which was prayed for in the application, and which was allowed by the order of the commission, under Section 614-53, which provides that a public utility or railroad when authorized by order of the commission may issue stocks, etc., “when necessary for the acquisition of property, the construction, completion, extension or improvement of its facilities or for the improvement or maintenance of its service, or for the reorganization or readjustment of its indebtedness and capitalization, or for the discharge of lawful refunding of its obligations, or for the reimbursement of moneys actually expended from income or from any other moneys in the treasury of the public-utility or railroad not secured or obtained from the issue of stocks, bonds, notes or other evidences of indebtedness of such public utility or railroad within five years next prior to the filing of an application therefor as herein provided, or for any of the aforesaid purposes” were not expenditures for the acquisition of property or for any of the other purposes mentioned in the section referred to, and, therefore, are not such expenditures as are authorized to be capitalized. .

It is, therefore, ordered and adjudged that the order of the commission be, and the same is hereby, reversed.

Order reversed.

Nichols, C. J., Jones, Matthias, Johnson, Donahue and Wanamaker, JJ., concur.

Robinson, J.,' not participating.


text:
    The Columbus Mutual Life Insurance Co. v. Morrissett.

      Contracts — Insurance agent — Amount due as compensation.

    (No. 16119
    Decided February 25, 1919.)
    Certified by the Court of Appeals of Franklin County.

      Mr. J. M. Sheets and Mr. S. A. Hoskins, for plaintiff in error.

      Mr. J. E. Todd and Mr. H. S. Ballard, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, modified so as to read as follows and as of February 26, 1919.

This day this cause came on to be heard on the petition in error, the bill of exceptions, transcript of the docket and journal entries of the court of common pleas and arguments of counsel, and was submitted to the court. On consideration whereof, the court finds no error in the record of the cause in the court of common pleas except in the assignment of the amount due plaintiff from the defendant, and this court finds that amount as of the date of July 18, 1915, to be $10,857.96, that the interest thereon from that date to the present date, February 25, 1919, is $2,347.07, making the total amount now due the plaintiff from defendant, $13,205.03. It is further ordered and adjudged that as so modified the judgment of the court of common pleas be, and the same is hereby, affirmed.

Judgment of the court of appeals modified and affirmed as modified.

Nichols, C. J., Jones, Johnson and Donahue, JJ., concur.

Robinson, J., not participating.


text:
    McBride et al. v. Marguerat, County Auditor, et al.

      County commissioners — Road improvement — Petitioner for improvetment estopped, when.

    (No. 16058
    Decided April 15, 1919.)
    Error to the Court of Appeals of Wyandot county.

      Mr. A. E. Walton and Messrs. Crissinger, Gut'hery &• Strelits, for plaintiffs in error..

      Mr. F. J. St alter, prosecuting attorney, and Mr. D. C. Parker, for defendants in error.
   Judgment affirmed on authority of Burgett et al. v. Norris, Treas., 25 Ohio St., 308, and Tone v. City of Columbus, 39 Ohio, St., 281.

Judgment affirmed.

Nichols, C. J., Jones, Johnson, Donahue and Wanamaker, JJ., concur.

Matthias, J., dissents.

Robinson, J., not participating.


text:
    The Continental Trust & Savings Bank Co. v. The Home Fuel & Supply Co.

      Judgments — Proceedings to vacate — Motion for new trial — Proceedings in error — Pinal order.

    (No. 16089
    Decided April 15, 1919.)
    Error to the Court of Appeals of Lucas county.

      Mr. R. S. Holbrook and Mr. C. R. Banker, for plaintiff in error.

      Mr. Warren J. Duffey and Mr. George C. Bryce, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be and the same is hereby affirmed. The motion to vacate the judgment rendered in the common pleas on a cognovit note upon warrant of attorney and without summons or notice was filed the day following the rendition of the judgment and during the same term. The lower courts, therefore, were right in considering it as a motion for a new trial, filed within the time prescribed by law. The action of the trial court sustaining such motion does not constitute a final order from which a proceeding in error may be prosecuted.

Judgment affirmed.

Jones, Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.

Nichols, C. J., not participating.


author: Judge Hitchcock.

text:
      Franklin County,

      August Term, 1821.
    Before Judges McLean, and Hitchcock.
    Lessee of Moore v. Vance.

      Deeds.

    The provision of the ordinance requiring deeds to be attested oy two witnesses, repealed from August 1, 1795.
    Executed between 1st of August, 1795, and 1st of June, 1805, valid, without any subscribing witness, if acknowledged by the grantor..
    Acknowledgment taken by a judge of the territory, in one of the United States, good.
    This was an action of ejectment brought to recover three hundred acres of land, in the county of Franklin.
    The plaintiff exhibited in evidence the copy of a patent from the United States to Jonathan Dayton, bearing date in 1800; a power of attorney from Dayton to E. Bonham, dated March is 1806, authorizing the sale of three hundred acres of land to the lessor of the plaintiff, which is the same in controversy; and a deed from Dayton, by his attorney, to Moore, dated April 9, 1806.
    The defendant offered in evidence a letter of attorney from Jonathan Dayton to himself, dated August 3, 1802, empowering him to sell four thousand acres, of which the land in controversy is part; a deed from Dayton, by his attorney, Joseph Yance, to his brother, Alexander Vanee, for four hundred acres, dated the 2d June, 1803, duly acknowledged and recorded in Franklin county, but without attesting witnesses. To the last deed the counsel for plaintiff objected; *but the objection was overruled and the deed admitted in evidence. The defendant then exhibited a deed from Alexander Vance to himself, for the land in dispute, which was dated in 1813, and duly executed, acknowledged, and recorded. The plaintiff then offered to prove that J. C. Symmes, the judge of the territory before whom the acknowledgment of the letter of attorney from Dayton to Vance purported to have been taken, was at the time out of the territory, and therefore had no authority to act in his official capacity; but the court being of opinion that such proof would not avail the plaintiff, overruled the testimony. The plaintiff also offered testimony to establish fraud between Joseph and Alexander Vance, and that the deed was executed to the latter in trust for the former.
    The court suffered the plaintiff to prove the declaration of Alexander Vance while he held title to the premises, to show the nature of his claim, and in what right he held the land. The jury returned a verdict for defendant.
    The plaintiff moved fora new trial, principally on two grounds.
    1. The court erred in admitting the deed from Dayton, by his attorney, Joseph Vance, to Alexander, inasmuch as there were no subscribing witnesses.
    2. The court excluded the evidence offered by the plaintiff to show that J. C. Symmes took the acknowledgment of the letter of attorney from Dayton to Vance without his jurisdiction.
    J. R. & O. Parish, and Irvin, in support of the motion,
    insisted :
    1. That, by the ordinance for the government of the territory northwest of the river Ohio, passed 1787, no conveyance of real estate could be valid, unless “attested by two witnesses,” etc. This provision of the ordinance was “to remain in force until the governor and judges should adopt laws,” etc. The law adopted by the governor and judges, from the Pennsylvania code, and published at Cincinnati, 1795, does not alter the mode of executing deeds for lands. It is, as it purports to be, “ a law establishing a recorder’s office,” and merely provides how deeds shall be proved before they shall be admitted to record in the territory. It was adopted to be the guide of the recorder, and not of the vendor and vendee. To p'revent forged deeds from record, the eighth section enacts that “all deeds, etc., shall be acknowledged by one of the grantors or bargainers, or proved by one or more of the subscribing witnesses, etc., and shall be recorded, etc., within twelve months.” If it should be contended that a deed -is valid under this law, which is either ^proved or acknowledged, the argu-_ ment would involve this absurdity, that a deed acknowledged by one of the grantors must be admitted to record without either proof or acknowledgment on the part of the other. If proof or acknowledgment is necessary to give validity to a deed, as to one grantor, no good reason can be given why it should not be equally requisite as to two or more. The policy of the law is to prevent impositions, and clearly requires proof or acknowledgment, before some judicial officer of the territory, before the deed shall be evidence of title in the grantee, or constructive notice to subsequent purchasers for a valuable consideration. If a deed is good without any subscribing witnesses, the acknowledgment, the mere declaration of one grantor, furnishes conclusive evidence against his co-grantors. This would be so contraiy to the general rules of law, and so repugnant to every principle of justice, that the court will never give the act such construction, unless required by the most unequivocal and express declaration of the will of the legislature. As the acknowledgment, through abundant caution, was superadded to the attestation required by the ordinance, a declaration of one of the grantors was deemed sufficient prima facie evidence against others in the same deed. By adopting this construction, the requisitions of the law may be reconciled to common sense and justice.
    But why speak of proving deeds by one or more of the subscribing witnesses, if none were necessary to its validity? • The governor and judges in adopting this law had evidently in view the ordinance requiring two witnesses to a deed, and they intended merely to save the inconvenience of calling both, and therefore provided that proof by either, or an acknowledgment by one grantor should be sufficient to admit the conveyance to record. The law of 1795 clearly did not dispense with subscribing witnesses ; but merely declared the manner of proof. Its terms are as clear as if it had been thus enacted ; two witnesses shall be required to a deed; but proof of its execution may be made by either

      or one of the grantors may acknowledge it before a judge or justice of the peace of the territory, and this shall dispense with the necessity of proof by either of the subscribing witnesses. If it had been the intention of the governor and judges, who adopted and published the law of 1795, to alter the provision of the ordinance in respect to the execution of deeds, they would have sought for a law* clear aud explicit in its terms, and would not have left a subject of this importance to doubt and construction.
    *The law of 1802 is still more vague in its terms than that of 1795. It is a rule that laws relating to the same subject are to be taken together and reconciled, if possible, so as to give every part effeGt. There is nothing either in the law of 1795, or of 1802, repugnant to the ordinance. The first declares how deeds for the conveyance of land shall be executed ; the other how they shall be proved before they shall be admitted to record. In this construction there is neither repugnance,- contradiction, nor absurdity. It leads to no injustice or mischief.
    In England, ever since the statute of frauds and perjuries, two witnesses have been required to a deed, and the law in nearly every state in the Union is the same. , It is scarcely probable that-in an infant settlement, the governor and judges intended to set themselves up as wiser than Congress and the legislatures of the “ original states.”
    The first law of Ohio is explicit upon the subject: and it is a general understanding amongst the bar that there has been no time since the ordinance of 1787 that a deed has been valid without two subscribing witnesses.
    2. The proof offered, that the judge took the acknowledgment of the power of attorney without the territory, and without his jurisdiction, ought to have been admitted. A judicial officer has no authority to exercise his powers without his jurisdiction. He has as much right to do one act without his limits as another. If he can take the acknowledgment of a deed, may he not hold to bail, commit for offenses, or sit in judgment upon the lives of men ? The law is indeed silent as to the exercise of his powers without his jurisdiction; but reason and policy forbid such implied authority. The case of Jackson, ex dem, of Wyckoff v. Humphrey, 1 Johns. 498, is an authority in point. To be sure that was ex parle proof of the execution of a deed taken in a foreign jurisdiction ; but an acknowledgment is tantamount, and the effect precisely the same. They are both ex parte proof of the execution ; they are both the act of a judicial officer; they are neither of them higher than prima facie evidence; and can be repelled by testimony on the other side.
    Swan, Beecher, and Brush, contra:

    The. ordinance of 1787 permitted lands to pass by deed executed in the presence of two attesting witnesses, “ provided such conveyances were acknowledged or the execution duly proved,” etc. It is clear by the ordinance, *that a deed attested by two witnesses passed the land with an acknowledgment, without proof, or with proof.,- without any acknowledgment. It is also conceded that before the adoption and publication of the law of 1795, no deed passed the land in the territory without two subscribing witnesses. The question turns' wholly upon the express or implied repeal of the ordinance, so far as the same respected the execution of deeds. The law of 1795 was passed in Pennsylvania in 1775, and is believed to be still in force in that state, and to be the only one relating to the execution of deeds. It was enacted to prevent the inconvenience and unnecessary strictness required by the act of 1715 (4 Binney, 204). It does, indeed, purport to be “ a law establishing the recorder’s office but the terms of the eighth section are too strong and the intention too obvious to be misunderstood. “ All deeds and conveyances which shall be made and executed within this territory, etc., shall be acknowledged by one of the grantors or bargainers, or proved by one or more of the subscribing witnesses to such deed, etc., and shall be recorded, etc., within twelve months,” etc. The adoption of this law is most clearly an exercise of the powers given to the governor and judges by the ordinance “to adopt and publish in the district such laws of the original states, both civil and criminal, as might be necessary and best suited to the circumstances of the district.” The ordinance vested no express power in the governor and judges to repeal any of its provisions; but, by the most irresistible implication, the mode of executing deeds, pointed out by it, should only be observed “ until the governor and judges should adopt laws on the subject ” from the original states. The language of the ordinance is : “And until the governor and judges shall adopt laws, etc., estates maybe devised or bequeathed by will, etc., and real estates may be conveyed by lease and release, or bargain and sale signed, sealed, and delivered by the person of full age, in whom the estate may be, and attested by two witnesses, provided such wills be duly, proved, and such conveyances be acknowledged or the execution thereof duly proved and be recorded within one year after proper officers, etc., shall be appointed for that purpose.”
    This law must be taken as a substitute for the ordinance so far as it respects the execution of deeds, and is equivalent to an express repeal of it. Then the deed under consideration must stand or fall by the adopted law of 1795 or the act of the territorial legislature of 1802.
    *The law of 1795 contains two distinct modes of executing deeds, either of which renders them valid and effectual in law; the one in the presence of witnesses, and by proof by one or more of such witnesses ; the other by an acknowledgment before some judge or justice of the peace, by one of the grantors. This law seems well suited to the circumstances of a territory when the population was sparse and when there were but few judges or justices of the peace. Its enactments are therefore in strict accordance with the requisitions of the ordinance. The language of the law is unequivocally n the alternative, and the construction for which the plaintiff contends would render nugatory the statute of Pennsylvania of 1775. It would, indeed, subject parties to all the inconvenience experienced under the law of 1715, to remedy which was the express intention in enacting the one adopted by the governor and judges of the territory.
    But the ordinance, as well as the law of 1795, was expressly repealed by the territorial act of 1802. The latter is an “act providing for the acknowledgment and recording of deeds in certain cases;” but in fact provides for all possible cases within or without the territory. The third section contains substantially these 'words: “And all deeds and conveyances which shall be made within said territory for the conveyance of any lands, tenements, or hereditaments situate within the same, etc., shall be acknowledged ot proved and recorded within six months from the actual signing or executing said deeds, etc.; and if they shall not be acknowledged or proved and recorded, they shall be deemed fraudulent,” etc. The last section repealed all laws and acts of the territory that came within the purview of that act.
    The common law required no witness to a deed. The seal was proved viva voce in open court. It is difficult to excite a doubt upon the intention of this law. Before a deed should be evidence, it must he proved or acknowledged and recorded. The proof required must be that which the pre-existing laws had made necessary to an instrument under seal; in other words, common law proof. If there were attesting witnesses living, their evidence must,be had; if dead, proof of the handwriting ; if there were no witnesses, proof of the handwriting of the grantor. Tantamount to such proof is the acknowledgment of the grantor. No argument can elucidate these propositions. This deed, therefore, being acknowledged, answered every requisite of the law, and was properly admitted in evidence to the jury.
    *In addition to the plain meaning of the statute, the people uniformly acted upon this construction. The deeds from 1795 till 1805, when the legislature of the state passed the first law upon the subject, are generally found without subscribing witnesses when an acknowledgment has been taken, and when there has been no acknowledgment, with one or more subscribing witnesses. The general practice was to acknowledge all deeds without subscribing witnesses. Should this practice now be decided to be illegal, it would destroy the titles under the territorial government. The case of McKean v. Delancey’s lessee, 5 Cranch, 22, shows how strongly courts under similar circumstances lean toward the established practice under a particular statute. The Supreme Court of Pennsylvania, McFerrin et al. v. Powers et al., Serg. & Rawl., have made a similar decision. Infinite mischief would follow from a construction of a law, upon which land titles depend, different from the settled custom of the people.
    The practice shows a contemporary construction of the law, and the court ought accordingly to decide, unless the practice should be found manifestly against the true construction of the law.
    2. The counsel for the plaintiff maintain that a new trial should be granted, because the court rejected testimony tending to show that Symmes, judge of the territory, took the acknowledgment of the letter of attorney from Dayton to Joseph Yance, in New Jersey, without his jurisdiction. They rely principally upon the case of Jackson, ex dem. of Wyckoff, v. Humphreys, 1 Johns. 498. We contend that this was not law before nor since the time it was made. It is against the settled law since the time of Chief Justice Pratt. 8 Mod. 323. “ The court held that a plaintiff who was in Holland might make affidavit there and get it attested by a pub-lie notary; and that it should be admitted as evidence to hold the defendant to bail here.” It is very certain that a party making a false affidavit in Holland, could not be indicted for perjury in England ; and it is also very certain that if the act was “ void,” a defendant would not have been held to bail under it.
    In the case of Omedly v. Newell, 8 East, 364, the authorities are all brought together, and it was adjudged that an affidavit made by an American citizen in Paris under the laws of France, was not “ void,” but sufficient to hold to bail in England.
    It would be very novel should our courts give more faith and credit to a foreign officer and & foreign jurisdiction, than to one of our own, known to our laws and acting under their authority. In the *case before cited, Lord Ellenborough thus expresses himself: ‘‘ It does not appear that any difference exists, in point of reason or law, between holding to bail, as it is practiced in the more frequent instances of affidavits in Ireland and Scotland, and of affidavits made abroad out of his majesty’s dominions.” Nor was the reason valid, that the party making affidavit in Canada could not be indicted for perjury. The court is not, in such case, without means of punishing the party who should attempt to impose upon them a false and fraudulent voucher of the kind. It appears from the last case cited, that although he could not be indicted for perjury, he would be answerable and punishable for a misdemeanor.
    There is a case in 3 Bos. & Pul. 57, exactly in point for the defendants. ' A fine was allowed to pass upon the affidavit of the commissioners, for taking the acknowledgment of the party in France made before an English magistrate then in France. 2 Bun. 655; 7 Term Rep. 315; 2 Strange, 1200.
    In the case of Welch v. Hill, 2 Johns. 373, and of Hopkins v. Mendenback, 5 Johns. 234, the Supreme Court of the State of New York has overruled the case of Jackson v. Humphreys. But the reason of the latter case does not apply to the one under consideration. Would not a judge of a territory of the United States, who should knowingly take the acknowledgment of a forged or fraudulent deed, be equally liable to impeachment, whether the act was done within or without his juridical limits ? The party himself who should be guilty of such imposition, would be liable to the' court for a fraudulent device.
    Judge Symmes was an officer known to the people of the territory and recognized by the public laws of the United States. He had express authority to take the acknowledgment of deeds within the territory. It cannot be denied that a citizen of New Jersey could have come within the Territory, and before one of its officers make a valid acknowledgment of a deed. The case would have been widely different had the officer of the territory attempted to take an acknowledgment of a deed in New Jersey to pass lands in that state. But he was a judge of the territory: he had authority by law to take the acknowledgment of deeds for lands situate within it; and this was a personal, and not a local authority. It was in the nature of a general commission which follows the person, and not that of a judicial authority which is limited to juridical jurisdiction.
   *Opinion of the court by

Judge Hitchcock.

The plaintiffs counsel insist upon a new trial upon two grounds.

1. That the deed from Dayton to Alexander Vance having no attesting witnesses, was not valid to pass the land under the then existing laws of the territory, and ought not to have been admitted in evidence.

2. That the court rejected evidence tending to show that the letter of attorney from Dayton to Joseph Vance was acknowledged by a judge of the territory northwest of the river Ohio without his jurisdiction.

If the counsel for the plaintiff be correct upon either ground, a new trial must be granted.

When the question was first presented, the court entertained strong doubts of the validity of the deed from Dayton to Alexander Vance. The first question presented to us is, whether the ordinance of Congress of 1787 was virtually repealed by the adopted law of 1795 and of the territoral legislature of 1802. It is very clear from the ordinance, that two witnesses are required to a deed for the conveyance of lands, and three’to a will, and that these provisions remained in force until the governor and judges adopted a law upon the subject from one of the “ original states.” In 1795 the governor and judges of the territory adopted the law of Pennsylvania, passed in 1775, upon the subject of the “ execution, proof, acknowledgment, and record oí deeds.” The statute is entitled “ a law establishing a recorder’s office;” but the eighth section expressly provides for the execution of deeds within the territory.

The first section enacts “ that there shall be a recorder’s office.”

The second declares the effect of the word “ grant,” etc.

The third punishes the forgery of acknowledgments, etc.

The fourth and fifth provide for entering satisfaction of mortgages, and a penalty against the mortgagor who shall neglect to comply with the act. '

The sixth and seventh point out how recorders shall be appointed, etc.

The eighth, which is the material one under consideration, enacts “ that all deeds and conveyances which shall be made within this territory, of or concerning any lands, tenements, or hereditaments therein, or whereby the same may be in any wise affected, in law or equity, shall be acknowledged by one of the grantors or bargainers, or proved by one or more of the subscribing witnesses to such 'deed, before one of the judges of the General Court, or before one of the *justicesof the Court of Common Pleas, where the lands conveyed do lie, and shall be recorded in the recorder’s office where such lands or hereditaments are lying and being, within twelve months after the execution of such deeds or conveyances,” etc.

From the moment this law was adopted and published, the force of the ordinance ceased, and the law became itself the rule as to the execution, acknowledgment, and proof of deeds conveying lands in the territory. Had this law remained silent as to the execution, proof, and acknowledgment of deeds, and only established a recorder’s office and regulated his duties, a deed would have been void without an attestation by two witnesses; but it is a well settled rule that when a law enacts a thing to be done different from the same thing required by a former law, the first thereby becomes repealed without any direct expression of such intention by the law-making power. It surely was never intended that the ordinance of 1787 and the statute under consideration should have a concurrent efficacy. Upon general principles of universal law an old statute gives place to a new one. 1 Blac. C. 89. But it is scarcely necessary to enter into a minute discussion of the provisions of the law of 1795, as the territorial act of 1802 repealed all laws and acts coming within its purview. The third section of this act differs little from the eighth section of that of 1795, except its terms are more broad and comprehensive. The latter clause in the third section is in these words: “ And all deeds and conveyances, which shall be made and executed within this territory, for the conveyance of any lands, tenements, or hereditaments situate within the same, whereby sneh lands, tenements, or hereditaments shall be conveyed, affected, or incumbered, shall be acknowledged or proved and recorded.”

It would be difficult, if not impossible, to express an alternative in more unequivocal terms. We are of opinion that both proof and acknowledgment of a deed, to make it a valid conveyance, are not necessary, and that by the terms of the act, either would be sufficient to admit the deed to record. The general terms of the statute, by the repeal of the law of 1795, either left the proof to the common law, the jus gentium, or the repealing clause- did not extend to the mode prescribed by the former act. If the latter construction be correct, which is not admitted, the proof must be made by “ one or more of the subscribing witnesses.” The court is inclined to consider the eighth section of the law of 1795 as coming within the purview of the act of 1802. It is, however, not deemed necessary to settle the construction of this part of the statute, as the subject is not directly before the court.

*If to give the deed validity no proof by subscribing witnesses was necessary, it would seem naturally to follow that the act under consideration intended to dispense with their attestation; for it would be an idle and empty form to require an attestation without also requiring proof. It can not be denied, that an exemplification of a deed, legally executed and admitted to record, is good evidence in all eases; nor do the counsel for plaintiff press very strongly the proposition that under the laws of the territory of 1802, a deed could not be admitted to record until it was proved by one or more of the subscribing witnesses, and acknowledged. The language of the act is too clear to be misunderstood. Now admitting that at any time after the publication of the law of 1795 until the year 1805, in order to admit a domestic deed to record, it was only necessary to have it acknowledged by the grantor before the proper officer without any proof; and also that an exemplification from the records was good evidence for the grantor: it would seem to be a plain consequence that an attestation would be form without substance, a ceremony without utility. The appearance of names could never lessen the-dangers of perjury; nor would they be any protection against fraudulent or clandestine conveyances. Following the construction of the court, the statutes have guarded with sufficient vigilance real estate in the territory. To the ordinary evidence of contract, the signature and seal of the party and persons that maybe present at its execution, is superadded the certificate of a sworn officer of the territory, that the grantor acknowledged in his presence the instrument to be his deed.

But it is said, in order to give validity to deeds of conveyance, almost every state in the Union requires the act to be done in the presence of witnesses who must attest their execution. It will be admitted that every sovereignty has right to prescribe rules to regulate the transfer of property with respect to real estates; the object of the statutes seems to be, to give solemnity and notoriety to the transaction, and to preserve the evidence of it. This is evident from the ceremonies observed at the feodal investiture down to the present mode of requiring attestation and acknowledgment. At first our ancestors deemed feodal donations sufficiently formal and notorious by livery of seisin without deed. 1 Coke on Litt. 490; 2 Fonb. 83. The next mode for conveying lands was by deed sealed and delivered. Neither signature nor subscribing witnesses were required until the reign of Edward IV. After that time the parties began to write their names over or near the seal. 2 Bla. 308, note. *In the reign of Henry VIII. they are signed by the parties, but not by the witnesses; but in the next reign the practice commenced for witnesses to subscribe their names. When the law-makers in this country speak of a deed it must be taken in a technical sense, as understood at common law; that is, a writing sealed and delivered by the parties. Should the legislature merely declare that lands should pass by deed, the court would have no hesitation in saying, that neither attestation nor acknowledgment would be necessary. To preserve the evidence of the transaction and give it solemnity, the legislature might require attestation and acknowledgment, or they might dispense with one oh either of them.

It appears to the court, on carefully comparing the laws of 1795 and 1802, with the ordinance of Congress of 1787, that the former virtually repealed the latter, so far as respects the execution, proof, and acknowledgment of deeds; that an acknowledgment before the proper officer superseded the necessity of calling attesting witnesses; and that the deed under consideration was legally admitted to record, and operated as notico to the lessor of the plaintiff, who purchased subsequently and therefore took nothing by his deed.

If doubts existed as to the construction, we should pause before we should make a decision against a practice which is admitted to be uniform from the publication of the law of 1795, until altered by an act of the general assembly of this state in 1805. It would create irremediable mischief to disturb the settled custom of the territory as to the evidence of title; nor would the court do it, unless it was manifestly founded upon an erroneous construction of the laws in force. The provisions of a statute ought to receive such reasonable construction, if the words and subject matter will admit of it, as that the existing rights of the public or of individuals be not infringed. 2 Mass. 146. It is also a rule that they be so construed that no man who is innocent shall be en-damaged. 1 Inst. 611. These liberal maxims seem fully recognized by the Supreme Court of the United States, in the case of McKeen v. Delancey’s lessee. Chief Justice Marshall, in delivering the opinion of the court, says, “ In construing a statute of a state on which land titles depend, infinite mischief would ensue should this court observe a different rule from that which had long been established in the state.” The court are, therefore, of opinion that upon the first point the plaintiff is not entitled to a new trial.

2. But the counsel of the plaintiff insist that the court erred in rejecting testimony tending to show that the officer before whom *the letter of attorney from Dayton to J. Vance purported to be acknowledged, was out ot the territory at the time, and that the acknowledgment is consequently void; and they rely upon the case of Jackson, ex dem. Wyckoff, v. Humphreys, 1 Johns. 498. It might well be questioned whether the testimony, if admitted, would have availed the plaintiff; but it is the province of the jury to decide upon the effect of testimony — of the court the question of competency.

The principal reason which appears to have governed the court in that decision was, that the oath administered in Canada, by an officer of that state, was extrajudicial and void, and the witness could not be indicted for perjury in case he swore false. This reason is not applicable to the case under consideration. Judge Symmes was not entirely in a foreign jurisdiction. He was an officer of the United States; and it might admit of doubt, whether, if the fact assumed had been conclusively proved, the act of acknowledgment would not have been completely valid. It docs not, however seem necessarily to follow that because the witness could not be indicted for perjury, that therefore the oath was of no validity; for it is clear from the case cited from 8 East, 322, that although the witness could not be indicted for perjury he could be made answerable for a misdemeanor, and therefore the oath was neither “extrajudicial,” nor “void.” This court pays great respect to the cases adjudged by the Supreme Court of New York; but when by chance we find one against the current of authorities, we must pause before we adopt it as settled law. We find, by two subsequent adjudications of the same court, the case of Jackson v. Humphreys substantially overruled, and we are rather inclined to adopt the latter decisions. The court think the last adjudged cases are more liberal and consonant to reason; for it would be strange, indeed, for a court to give more credit to a foreign officer and an alien than one of our own citizens, clothed with authority by our own laws. It would require no ordinary effort to reconcile these decisions.

Independent of this, that was matter of proof in which might be involved a serious question under the criminal laws of New York; here no such question can possibly ai’ise. It is presumed that a judge taking the acknowledgment of a deed for fraudulent purposes' or knowing it to be forged, within his particular jurisdiction, or another state, would, in either ease, subject himself to the same punishment; and it is equally certain that one who, by fraudulent devices or forgery, should procure an acknowledgment, whether in or out of the territory, would be equally liable to punishment.

'-'"'There appears some force in the remark, that a judge empowered to take the acknowledgment of deeds rather acts as a general commissioner of the law than in a judicial capacity; and that this is an authority which accompanies his person and is not limited and confined to juridical jurisdiction. Be this as it may, we are inclined to the opinion that one of the judges of the United States empowered by law to take the acknowledgment of deeds conveying lands, may, in any part of the Union, take such acknowledgments, not to affect lands in a foreign jurisdiction, but in the territory over which his powers extend.

Let judgment be entered on the verdict;