author: Williams, C. J.

text:
    Schaaf et al. v. The Cleveland, Medina & Southern Railway Company et al.

      Interurban railroad on sidle of public highway — An interference with easement and, right of way of abutting farms, when— Conditions similar to those of steam railways — Effect of construction of electric plant in connection with such railway —Plaintiff entitled to injunction, when.

    1. The construction and operation of an interurban railroad laid with T rails, entirely on the side of a public highway next to 'the abutting improved farms owned and occupied by the plaintiffs, and entirely between their lands and the traveled part of the highway — the company having authority to run-an unlimited number of cars and trains for the carrying of passengers, and the transportation of freight, express matter and government mail, is an additional burden on the public highway and obstruction to, and interference with the plaintiffs’ easements and rights therein, not substantially different from those that are imposed by the construction and operation of steam railroads, under like conditions.
    2. The construction and operation of an electric plant in connection with such railway, and on the same side of the traveled public roadway, for supplying heat, power, and light to consumers for profit, constitutes another additional burden which is an invasion of the plaintiffs’ property rights.
    3. The plaintiffs are entitled to injunction, in such case, to prevent the construction and operation of such railroad, and of such electric plant, or either, until compensation and damages shall be assessed them in a proper appropriation proceeding, and paid, or secured to be paid.
    (Decided April 22, 1902.)

      Error to the Circuit Court of Cuyahoga county.
    The plaintiffs in error brought their action in the Cuyahoga common pleas against the Cleveland, Medina & Southern Railway Company and John Davis to enjoin the construction and operation of a railroad along and over a public highway, known as the Wooster pike. The plaintiffs are the owners of improved farms which abut on this public road and their titles in fee extend to the center of the road. They reside on these farms and in connection therewith make all the uses of the road that abutting proprietors are accustomed to do. The road has been improved and constitutes their means of access to their lands, and they have never consented to the construction of the railroad thereon.
    The petition alleges that “they are the owners of and are seized as of estates in fee simple of certain, tracts of land located in Middleburg township, Cuyahoga county, state of Ohio, and which tracts of land abut on the western side of what is known as the Wooster pike, which is a road or highway dedicated to public use for the purpose of a road or highway;, that these plaintiffs are the owners of the fee to the center of said road on the portion of said road upon which the lands of these plaintiffs abut subject only to the right of the public use as such road or highway; that the board of commissioners of Cuyahoga county have heretofore granted to another corporation, to-wit: The Wooster, Medina & Cleveland Street Railway Company, the right of way in said Wooster pike-so far as the said board of commissioners have power to grant the same to construct and build a railway over and along said Wooster pike and especially on the portion of said Wooster pike upon which the lands, of the plaintiffs above described directly abut and the title to which is in these plaintiffs subject only to said public uses as above set forth; that the defendant, The. Cleveland, Medina & Southern Electric Railway Company, claims to be entitled to all the rights of the said, The Wooster, Medina & Cleveland Street Railway Company, so acquired from said board of commissioners; that the said defendant railway company without having acquired the right from these plaintiffs or under the statute in such cases made and provided, is about to and unless prevented by order of this Honorable Court, will, through its agents, contractors and servants wrongfully and unlawfully erect large wooden poles on the land of these plaintiffs along said highway for the purpose of supporting electric trolley wires to be used in connection with, the proposed electric railway, and the said defendant railway company also threatens, through its agents, contractors and servants, to proceed to lay and construct a railroad suitable for the use of operating electric cars on the side of said highway, the title to which is vested in these plaintiffs as above set forth; and when the said railroad is completed the defendant railway company through its agents and servants will operate and run over said railroad electric cars at a very high rate of speed, said cars it is proposed to have carry passengers and freight from various points through the counties south of Cuyahoga county.
    “Plaintiffs further say that the defendant railway company has entered into a contract with the defendant, Joseph Davis, for the furnishing and erecting of said wooden poles, and the said defendant, Joseph Davis, has already distributed the poles along the lands of these plaintiffs and is about to erect and set. them along the lands of these plaintiffs in the manner above set forth.
    “Plaintiffs further say that the erecting of said poles and the construction of said railroad and the laying of the track’s along said highway as contemplated in the manner above set forth and as provided for in the grant of the right of way by the said county commissioners, and the running of the electric cars thereon, will have the effect of seriously interfering with plaintiff’s enjoyment of their property above described and will result in great diminution of the value thereof and of the value of the private rights and easements which they now respectively have in said highway, and especially will seriously interfere with their means of access to and from their respective tracts of land and will render it absolutely impossible to hitch their teams along that side of the highway or to allow them to stand in said highway.
    “Plaintiffs further say that such contemplated use of the said highway by the said defendants in the manner hereinbefore set forth is an essential and great diversion of the said property to uses and ■ purposes other than those for which it was acquired by the 'public use-as to accumulate materially additional burdens upon the lands and as to destroy and impair the incidental rights of the plaintiffs appurtenant to their lands on said highway and that the damages resulting therefrom will be irreparable, and that said defendant railway company is insolvent and unable to pay its obligations or any judgment for damages which these plaintiffs might recover against them by virtue of the premises.
    “Plaintiffs further say thát these defendants have been notified by all the plaintiffs herein or by their agents that these plaintiffs objected to the proposed acts of the defendant, Joseph Davis, has only accelerated the work and has been laying telegraph poles by day and night and without any right whatsoever to do it, is unlawfully distributing them along the front of the land of these plaintiffs, and if the court should require any notice to be given of an application for a restraining order in this case such notice will only give the said defendant, Joseph Davis,, and the said defendant railway company opportunity to erect all of said poles before the said restraining order can be granted on notice to these defendants.
    “Wherefore, plaintiff prays that an order may issue from this Honorable Court forthwith restraining these defendants, their officers, agents, contractors and servants from further carrying -on any portion of their work in the manner above set forth and that such order be issued without notice to these defendants for the reason that the object for which this injunction is prayed may in great measure be defeated by the giving of any notice to said defendants and that on the final hearing of this case a perpetual injunction may be granted forever restraining these defendants or either of them or their officers, agents, contractors or servants from carrying on any portion of said proposed work and plaintiffs ask for such other and further relief as in good conscience they may be entitled to.»
    The only material part of the answer is a denial that the building of the railway will interfere with plaintiffs’ enjoyment of their property, or depreciate its value, or become an additional servitude upon the highway.

      The circuit court dismissed the petition and rendered judgment against the plaintiffs for costs, from which error is prosecuted here. That court made a finding of the facts, the substance of which will appear in the opinion.

      Messrs. Herrick & Hopkins, for plaintiff in error.
    Whatever the law may be in the other states the rule is well settled in Ohio that the rights of the public and the abutting owner in the highway are entirely separate and distinct from each other. Crawford v. Delaware, 7 Ohio St., 459.
    The law is also well settled that the rights and interest of the abutting owner are greater in the country highway than in the city street. Elliott on Roads and Streets, pp. 299, 308; Thompson on Highways, p. 6; 2 Dillon Munic. Corp. (3 ed.), 686.
    The public has a right of passage and the right to improve and use the public highway in the manner and for the purposes contemplated at the time it was established. Daily v. State, 51 Ohio St., 348.
    The abutting owner has the right to all uses of the land not inconsistent with this right of passage and improvement, 3 Kent, Sec. 432.
    He has the right to cultivate and raise crops on so much of his side of the highway as is not actually used for travel.
    He has the right to plant, raise arid enjoy trees on that portion not used for travel.
    He has a right to the herbage and may graze his cattle thereon; and may maintain trespass against, others who put their cattle there to graze. Angelí on Highways, Sec. 303.

      He has the right to store lumber, wood and building materials on such portion. Clark v. Fry, 8 Ohio St., 358. Also to hitch horses.
    He has a right to the quiet enjoyment of his premises and not to be interfered with by unusual disturbance, such as shooting, organ grinders, etc. Regina v. Pratt, 4 El. & Bl., 860; Adams v. Rivers, 11 Barb., 393.
    Also to lay drains and water conduits across the highway, restoring highways to safe condition of travel. Angelí on Highways, Sec. 303.
    The most important right of the adjacent owner is that of a free and convenient “easement of access” to and from the highway at all points along his frontage. Street Railway v. Cumminsville, 14 Ohio St., 523; Branahan v. Hotel Co., 39 Ohio St., 333.
    The following acts have been held to be infringement of the rights of an abutting owner in a country highway:
    Laying gas pipes in such highway. Bloomfield Gas Co. v. Calkins, 62 N. Y., 386.
    Running a shafting across the road under a bridge. Estey v. Baker, 48 Me., 495.
    Shooting at a bird from the highway by one passing along it. Regina v. Pratt, 4 El. & Bl., 860.
    Standing in the highway and using vulgar language to the owner. Adams v. Rivers, 11 Barb., 390.
    Laying water pipes in the country highway. 7 Del. Co. Rep. (Pa.), 373.
    Erecting electric lighting wires and poles. Palmer v. Larchmont Elec. Co., 6 N. Y. App. Dec., 12.
    Using highway as a landing place for a ferry. Chambers v. Furry, 1 Yeates, 167.
    Constructing trolley railroad. Osborne v. Railway Co., 9 Pa. Sup. Ct., 632.

      Erecting telephone poles and lines. Chesapeake & P. Phone Co. v. Mackenzie, 28 Am. St. Rep., 219.
    Cutting timber along the highway. Roberts v. Failis, 1 Cow., 238.
    Cutting down a hedge. Phifer v. Cox, 21 Ohio St., 248.
    Erecting and maintaining a telegraph line. Daily v. State, 51 Ohio St., 348; Cooley on Const. Limit. (4ed.), 680.
    The foregoing enumeration of violations of the rights of the abutting owner in a country highway abundantly proves the jealous care of these rights which our courts have heretofore exercised. It is submitted that they also materially assist in the decision of this case. Railroad v. Williams, 35 Ohio St., 168; Daily v. State, 51 Ohio St., 348.
    The road will be a thoroughfare and not a mere local convenience. Its very name indicates that it is a thoroughfare. Cooley on Const. Limit. (4 ed.1), Sec. 556; Railway Co. v. Heisel, 38 Mich., 62.
    A street railway is also intended to carry passengers only and not .freight. Williams v. City Electric Ry. Co., 41 Fed. Rep., 556; Booth on Street Railways, Secs. 1 and 90; Elliott, Roads and Streets, p. 557; Carli v. Street Ry. Co., 28 Minn., 373.
    The only point of material difference is in the motive power, but the rule seems to be well established that the question as to whether or not the burden upon the highway is increased depends not upon the motive power used but upon the character of the use as well as the purpose and manner of construction. Nichols v. Railway Co., 87 Mich., 361; McQuaid v. Railway Co., 18 Ore., 237.

      In no sense of the word, therefore, can the. defendant’s railway be treated as a street railway, but it should rather be classed as a steam railway. It is therefore submitted that the rule laid down in Railway Company v. Williams, supra, is applicable to this case.
    It would also seem that the ruling of the Cumminsville case is applicable here; that a track laid with T rails above the grade of the street, and next to the curb line would be a much greater obstruction to the convenient access to the land than the track described in the Cumminsville case.

      Mr. Cr. B. McKay and Messrs. Newman & Tillman, for defendants in error.
    The facts stated by plaintiffs in error in their brief are correct with this exception, that the defendant railway company did not propose to construct its roadway right next to the curb line, but were to construct it in accordance with the terms of -their franchise and as directed by the county commissioners. There was no evidence to show that a T rail was to be used, the president of the company, Mr. Joseph W. Roof, having testified that the kind of rail to be, used had not been decided upon.
    It is admitted by all parties that this is a public highway and has been used as such for many years; that this railway company had obtained the consent of owners of more than a majority of all the feet front along said highway; that permission had been given them by the county commissioners to occupy said highway and every necessary step had been taken by the said railway company to comply with the statutes, of Ohio.

      There is no dispute between counsel in this case as to the law, as all the cases cited in the brief of plaintiffs in error were thoroughly gone into before the circuit court, and in the opinion of the counsel for defendants in error the law is well established as stated in Street Railway v. Cumminsville, 14 Ohio St., 523; Railway Company v. Williams, 35 Ohio St., 168; Railway Company v. Lawrence, 38 Ohio St., 41. It is simply a question of fact for the court to determine as to whether or not any of these plaintiffs in error have been deprived of any right or been materially injured.
    There being no dispute as to the law, and it being well established in this case, defendants in error claim that this case must be decided upon the facts brought out in the hearing. After a careful hearing the common pleas court dismissed the case begun by plaintiffs in error and refused to grant an injunction, deciding that their right of ingress and egress would not be interfered with; that no incidental right would be impaired and that plaintiffs in error would not suffer any material injury. The circuit court affirmed that decision after a long and careful hearing of the facts, and specifically found that no right of the plaintiffs in error was being materially injured and refused to grant an injunction against defendants in error, and the same facts are presented to this court as were presented to the common pleas and circuit courts.
    In no manner are their rights of ingress or egress interfered with, as they could not enter upon any of the farms along that highway before first constructing a bridge across this ditch, running the entire frontage of the farms along this highway; no shade trees will be interfered with or injured in-any ntan:; ner. The photographs attached to the affidavits as-exhibits, will show the position and location of the poles. Especially in front of the blacksmith shop of Hutchinson, the court will notice the manner,,,in which bridges had to be constructed across this deep ditch so that access could be had to the farms. ,
    We would refer the court specifically to the finding of facts of the circuit court, section 3, to show, the width of the highway and the location of this pro-, posed railway, and by reference to the photography, attached, the court will see that no right of the.plain:, tiffs in error has been interfered with , in any maim ner, will not prevent them raising crops, the line will, not interfere in the least with any of their trees, .their cattle can graze at large over acres of ground, they could not now hitch their horses in this ditch, there, would be no occasion for the loading or unloading, pf. wagpns in the ditch, fer they could not drive a wagon, in there now without upsetting.
   Williams, C. J.

The circuit court found, as the. plaintiffs allege-in- their petition, that they are the owners of improved farms, on which they reside, that front and abut for considerable distances on the public road in question, and that they own the fee of their lands to the center of the road. This road has long been used by them as their means of ingress and egress to and from their farms, and for all the purposes of a public highway. That: “The said highway upon the westerly, side of which these plaintiffs’ lands are located, is sixty feet wide from fence to fence, the width, of the sidewalk, between ditch, and.fence on each side is eight feet; and the.-width of;the roadway as established is thirty-two feet; upon each side of said roadway and immediately adjacent thereto is a ditch six feet wide, from two to three feet deep, the entire frontage of plaintiffs’ land except seventy-five feet in front of the house on the land of said John Hurst, and about forty feet in front of the blacksmith shop on said land, and except also about 125 feet in front of the house on Daniel Hutchinson’s property, in all of which said places said ditch has been tiled and filled in, and upon the easterly side of said traveled roadbed immediately next to the ditch is a brick pavement eight feet wide. And upon the extreme westerly side and edge of said roadway, defendant railway company, purposes to construct a railway by laying ties, and placing thereon T rails, such as are ordinarily used by suburban railways, the nearest part of which shall not be nearer to the center of said roadway than eleven feet in accordance with the terms of said franchise, and nineteen feet from the nearest edge of the brick pavement upon the extreme opposite side of the said traveled roadbed, and to maintain upon the westerly side of said highway poles for the carrying of trolley wires, feed wires and .vires for the carrying of electric power to be sold to parties desiring electric light, heating or power, and to operate on said railway, cars propelled by electricity and further to carry upon same passengers and freight.”

That the railway company having presented to the board of county commissioners the written consent of the owners of more than half of the feet front of the lands abutting upon the public highway, but without the consent of any of the plaintiffs, obtained from that board the grant of a franchise to construct, lay, maintain and operate for a period of twenty-five years, along and over this public highway, in all respects according to the plans and purposes of the railway company as hereinabove stated and set forth, “a single track street railway, with all suitable convenient side tracks, switches, turnouts, turntables, stations and appurtenances. Also for the right to construct and maintain all necessary wires to connect its feed wires with adjacent property along the route therein petitioned for, necessary to supply light, heat or power to such adjacent property and all other things necessary to operate a street railway with electricity or other approved motive power acceptable to the county commissioners. The right herein granted is, to operate a street railway for the transportation of passengers, baggage, packages, boxed and barreled freight, farm produce, express matter, and United States mail.”

The grant fixes a "time within which the railway shall be commenced, and completed, requires cars to be run over it “as often as three times each way daily,” and contains some regulation relating to the fare. The board of commissioners reserved the right to grant similar franchises to other companies.

The court announced as its conclusion of law, that, upon this state of facts the plaintiffs were not entitled to the relief they sought, and rendered judgment accordingly. In that conclusion we are unable to concur. In our opinion the construction and operation of the railroad as authorized and proposed, must necessarily constitute a serious obstruction to the plaintiffs’ use of the public highway as a means of access to their farms, and an additional burden on the highway not contemplated in its originally intended uses. The whole burden of the railway, with all of its authorized appurtenances, is thrown entirely upon the side of the public road next to the plaintiffs’ lands, and between them and the traveled part of the roadway. The nature of that burden is not different in any material respect from that imposed by the construction and operation of a steam railroad. The difference, if any, is merely in the degree of the burden and not in its character; and can scarcely be less, in any degree. It may become more onerous and injurious. As shown by the findings of the court, the railroad is to be built and maintained on the “extreme westerly side and edge” of .the traveled way of the public road, that is between the traveled roadway and the plaintiffs’ lands, and the tracks are to be laid with the ordinary “T” rails which project some distance above the ties —the same kind of rails usually' employed in the construction of steam railroads through the country. While public crossings and extensions of farm lanes, are required to be planked to a certain extent, it often becomes convenient and necessary to drive onto and off the traveled roadway, elsewhere, with loaded and empty vehicles, to which this railway will present the same obstructions, and cause the same hinderance, delay and annoyance that attend the crossing of steam railroads. Then, this railroad company is authorized to construct and use, on the same side of the public road between its traveled way and the plaintiffs’ lands, “all suitable and convenient side tracks, switches, turnouts, turntables, stations and appliances,” without limit to their extent, other than as the company may deem them convenient and suitable. And, in addition to this, the company is given authority to erect and maintain on the same side of the public roadway, and next to the plaintiffs’ lands, all poles, which are of large dimensions, and all wares and other appliances, necessary to enable it to operate an electric plant for supplying light, power and heat to consumers, for profit. Besides, this company is authorized, not only to carry passengers, but also to transport over the road, “baggage, packages, boxed and barreled freight, farm produce, express matter, and United States mail;” and, though it is required to run cars over its road at least three times each wray daily, it is not limited as to the number of cars, or trains, for freight or passengers, or both combined, or the size or make-up of the trains. All things considered, it is reasonably certain from the facts found that the practical operation of such a road, within its capacity, must necessarily produce annoyance and inconvenience to the plaintiffs, and interfere with their property rights as abutting owners, of the same general character that result from the operation of steam railroads, and become an additional burden on the public highway, and taking of the plaintiffs’ property, in the same sense. The law' governing the rights of parties in such cases, is w'ell settled in this state, and wre need only to refer to the case of Railroad Co. v. Williams, 35 Ohio St., 168, for a clear and satisfactory statement of the law. It is there held that:

“As between the public and the owmer of land upon w'hich a common higlrway is established, it is settled that the public has a right to improve and use the public highwmy in the manner and for the purposes contemplated at ' the time it was established. The right to improve includes the pow'er to grade, bridge, gravel or plank the road in such a manner as to make it most convenient and safe for use by the public, for the purposes of travel and transportation in the customary manner, which is w'ell understood to be by the locomotion of man or beast, and by vehicles drawn by animals, without fixed tracks or rails to which such vehicles are confined when in motion. These constitute the easement which the public acquires by appropriating land for the right of way for a highway, and these, in legal contemplation, are what the owner is to receive compensation for when his land is appropriated for this purpose. The fee of the land remains in the owner; he is taxed upon it; and when the use or easement in the public ceases, it reverts to him free from incumbrance.

“In the exercise of the right of eminent domain, the state, through the general assembly, may delegate to a railroad corporation the power to appropriate a right of way for its road along and upon a public highway. But the appropriation for this purpose cannot be constitutionally made without making compensation to the public for the injury thereby occasioned to its easement in the highway; and also making compensation to the owner of private property taken for the use indicated. In such case, the rights of the public, and the rights of the owner, are entirely distinct; and the consent, express or implied, of one to the appropriation, would not bind or affect the rights of the other. But we are not dealing with the public right. It has already been said that the plaintiff, in the probate court, was the owner in fee of the land covered by the highway. This was her private property within the meaning of the constitution, subject only to the easement of the public therein. The nature and extent of this easement was above shown. The railroad company, by occupying the highway, constructing its track, and operating its trains thereon by steam motive power, completely diverted the highway from the uses and purposes for which it was established. This new use to which the highway has been diverted, imposes burdens on the land that áre entirely different from, and in addition to, those that were imposed by the highway. The right to so divert the use, and impose additional burdens on the land, could only be acquired by the corporation by agreement with the owner, or by appropriating and making compensation therefor, in the mode prescribed by law.”

We are aware that decisions in other states may be found which do not entirely agree with ours; but the Ohio rule above announced has been established for many years, going back to Crawford v. Delaware, 7 Ohio St., 459, and has never been departed from. We are entirely satisfied with it.

And it is obvious also that within this rule the construction and operation of an electric plant, with its appliances, in connection with such railway, and on the same side of the traveled public roadway, for supplying heat, power and light to consumers for profit, constitutes another and additional burden which is an invasion of the plaintiff’s property rights. The relative rights of an owner of land and of a private electric company which seeks to erect and maintain electric poles and wires in a public way, on which such land abuts, without the owner’s consent, or without the compensation guaranteed to him by the constitution, were thoroughly considered in the case of Callen v. Columbus Edison Electric Light Company, 66 Ohio St., 166, ante.

The right of the owner to injunction against the threatened invasion and subjection of his property ngnts for the benefit of the corporation in such case is so logically and satisfactorily maintained in the opinion of Spear, J., that the citation of other authorities is not deemed necessary. The case on that subject is equally decisive of this one. '

It being ascertained that such an additional burden as • has been stated, will be imposed on this public highway and the plaintiffs’ abutting right and property, the extent of the burden and its effect on the value of the property, including the damages which the owners will sustain, are not questions for the determination of the court, but belong, under the constitution, to a jury, unless that mode of assessment is waived. Nor, is it any objection to the relief sought in this case that the plaintiffs might'have brought ah action for damages. They are entitled to injunction against the threatened invasion of the property rights. That is the primary remedy, long established, and best adapted to the preservation of their rights. They are not required to wait until the threatened injury is done, and then undergo the vexations and expense of a protracted litigation that in the end may afford but incomplete and inadequate relief. It was the primary duty of the railway company, before attempting to take from the plaintiffs, property rights which the constitution guarantees to them, to institute in a proper tribunal the necessary appropriation proceedings to obtain an assessment of compensation and damages to them. The company cannot interpose its violation of that duty, as a defense to the plaintiffs’ injunction.

Judgment reversed and judgment for plaintiffs in error for an injunction against the construction and operation of either the said railroad or electric light plant; and, in case the defendants in error have commenced- work on either, it is ordered and decreed that within thirty days from the entry of this decree they remove all material and obstructions placed in the public highway by them, and restore the said public highway to the condition it toas in at the time and before the commencement of said work.

Burket, Spear, Davis and Price, JJ., concur.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    The German Mutual Insurance Company v. Lushey et al.

      Testatrix, having child living, devises all estate to husband— An after-born child will inherit from mother as heir at law —Law of wills.

    Where a testatrix, having a child living, devises all her estate to a third person (in this case her husband), without making provision in her will for an after-born child, such after-born child, if it survive the testatrix, by virtue of the provisions of Sec. 5961, Rev. Sta.t., will inherit from the mother as her heir at law, as if she died intestate, notwithstanding, that by clear and explicit language in the will, such testatrix undertakes to disinherit such after-born child.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Hamilton county.
    In September, 1898, the plaintiff in error filed its petition in the court of common pleas of Hamilton county, to foreclose a mortgage given by George Lushey, September 30,1892, to secure a note to plaintiff in error, for the sum of ten thousand dollars, payable one year after date, with interest payable semiannually. This mortgage covered real estate in the city of Cincinnati. Interest was paid on the mortgage to September 30, 1897, after which no further payments were made.

      Whatever title George Lushey had in and to the premises so incumbered, rests entirely in the last will and testament of his wife, Carrie Lushey, executed on the 11th day of June, 1872. Harry W. Lushey, a son of the testatrix, answered the petition of the insurance company, plaintiff in error, alleging title in himself to the undivided one-half of the premises described in the mortgage, which title he derived from said Carrie Lushey as one of her heirs at law; and he prayed that his title be quieted as against the insurance company and its claims under said mortgage. On the trial of the case to the court without a jury, the facts were found and conclusions of law stated, as follows:
    “That Caroline Lushey, late of Hamilton county, Ohio, being seized of the fee simple title to the premises described in the petition, on the 11th day of June, 1872, made and executed her last will and testament, of which the following is a copy :
    “In the name of the Benevolent Father of all, I, Caroline Lushey, wife of George Lushey, of the city of Cincinnati, county of Hamilton and state of Ohio, do make and publish this my last will and testament. I give and devise to my beloved husband, George Lushey, all of my estate, real and personal, of which I may die seized and possessed, to have and to hold the same to myself, his heirs and assigns forever. Should any child or children, toe now having only one,George Gabriel, be born to me hereafter, it shall in no wise alter or revoke this will and testament. Should my husband, George Lushey’s, decease precede my owm, it is my will that Julius Benckenstein shall act as trustee of my estate, real and personal, and guardian of my child or children, and I ask the probate court to ratify this appointment. Said trustee shall manage said estate as to him may seem advisable for the best interest of my child or children, and shall have full power to sell or convey any portion or all of said estate, real or personal, and shall render an account of his doings as such trustee when the youngest of my children shall come of age and shall then pay or turn over said estate and the proceeds of the balance .thereof to my said child or children. Said trustee shall, before entering upon the discharge of said trust, file his bond with two good and sufficient sureties in the probate court of Hamilton county, Ohio, conditioned for the faithful performance of his duties as said trustee in double the appraised value of my estate, real and personal. In such event no executor or administrator shall be appointed, but said trustee shall pay all of the indebtedness of my estate out of the same. I desire that no appraisement shaft be made should my husband, George Lushey, survive me, and in that event the said George Lushey shall act as executor of my last will and testament without any bond being required of him, and the said probate court of Hamilton county, Ohio, is requested to ratify said appointment and to direct the omission of any such bond.
    In testimony whereof I have hereunto signed my name this 11th day of June, A. D. 1872, at Cincinnati, Ohio.
    “Carrie Lushey.
    “Attested and subscribed by us as witnesses in presence of Caroline Lushey and of each other, we having seen her subscribe her name to and heard her acknowledge the above as her last will and testament.
    “L. W. Goss,
    “Gabriel Benckenstein.

      “That on the 8th day of March, 1879, the said will was duly admitted to probate and no proceedings were instituted to set aside the said will, and said will is in full force and effect.
    “At the time said Caroline Lushey executed her said last will and testament she was the wife of the defendant, George Lushey, and one child, named George Gabriel Lushey, had been born to said Caroline Lushey and George Lushey, and was living at the time said will was executed.
    “After executing said will another child, the defendant, Harry W. Lushey, was born to the said Caroline and George Lushey. The said Caroline Lushey died in June, 1878, seized in fee simple of the premises described in the petition, and leaving the defendant, Harry W. Lushey, and his brother George Gabriel Lushey her only children and sole heirs at law, and also leaving the defendant, George Lushey, her husband, surviving her.
    “That on the 30th day of September, 1892, George Lushey being in possession of the premises described in the petition executed and delivered to the plaintiff, The German Mutual Insurance Company, a corporation duly organized under the laws of the state of Ohio, for a valuable consideration his promissory note of that date, whereby he promised to pay the German Mutual Insurance Company or order'the sum of ten thousand dollars in one year after date at six per cent, interest, interest payable semi-annually.
    “That the interest on said note has been paid up to March 30, 1897.
    “That said note is due and that no payment has been made thereon.
    “That in order to secure the payment of said note said George Lushey, at the time of the execution of' said note, executed and delivered to the German Mutual Insurance Company his certain mortgage deed and thereby conveyed to the said German Mutual Insurance Company the premises set out in the petition.
    “That said mortgage deed was on the 30th day of September, 1892, duly recorded in book 652, page 40,' of the mortgage records of Hamilton county, Ohio.
    “That on or about the first day of February, 1898, the said George Lushey, in consideration of one dollar, executed and delivered, his certain deed of general warranty, conveying to his son, Harry W. Lushey; among other property the real estate described in the petition, which deed was recorded February 3,1898.
    “The court finds as conclusions of law that the said Caroline Lushey, by her said will, intended to disinherit the said Harry W. Lushey, but that such intention was contrary to the provisions of Sec. 5961, Rev. Stat., which section provided in terms that.where a party has one child then living and executes a will and afterwards a child is born to such person, such afterborn child shall have his share the same as if the testator had died intestate.
    “Under this construction it gives to the afterborn child his share in his mother’s estate and the child then living receives nothing, the father receiving the ether portion.”
    The court rendered a judgment on the findings against George Lushey, the mortgagor, for the amount of the note and interest, and ordered his undivided half of the premises to be sold, and quieted the title of Harry TV. Lushey to the other half.
    The motion of the insurance company for a new trial was overruled, and it prosecuted error in the circuit court where the judgment of the common pleas was affirmed.

      The case is here on error to obtain a reversal of the judgments of the lower courts.

      Mr. Chris Von Seggern and Messrs. 'Ratterman <£ Ward, for plaintiff in error, cited the following authorities:
    Sedgwick on Statutory Const. Law, 247; Doyle v. Doyle, 50 Ohio St., 330; Rhodes v. Weldy, 46 Ohio St., 234; 39 Am. Dec., 740; Bowen v. Hoxie, 137 Mass., 527; Wilder v. Goss, 14 Mass., 356; Block v. Block, 3 Mo., 594; Hockensmith v. Slusher, 26 Mo., 237; McCourtney v. Mathes, 47 Mo., 533; Gay v. Gay, 84 Ala., 38; Alden v. Johnson, 63 Iowa, 124; Williard’s Estate, 68 Pa. St., 327; Waterman v. Hawkins, 63 Me., 156; Hirn v. State, 1 Ohio St., 15; Dodge v. Gridley, 10 Ohio, 173; Sawyer v. State, 45 Ohio St., 343; Goodall v. Brewing Co., 56 Ohio St., 257; Teaff v. Ross, 1 Ohio St., 469; Ash v. Ash, 9 Ohio St., 383; Terry v. Foster, 1 Mass., 146; Mayo v. Boyd, 3 Mass., 13, 21; Merrill v. Sanborn, 2 N. H., 499.

      Messrs. Renner, Gordon & Renner, for defendants in error, cited the following authorities:

      Rhodes v. Weldy, 46 Ohio St., 234; Hollingsworth’s Appeal, 51 Pa. St., 518; Ash v. Ash, 9 Ohio St., 383; Evans v. Anderson, 15 Ohio St., 324; Chace v. Chace, 6 R. I., 407; Trust and Deposit Co. v. Trust Co., 36 Fed. Rep., 863; Gage v. Gage, 29 N. H. (9 Foster), 533; Waterman v. Hawkins, 63 Me., 156; Walker v. Hall, 34 Pa. St., 483; Williard’s Appeal, 68 Pa. St., 327; Branton v. Branton, 23 Ark., 569; Marston v. Fox, 8 Adolph. & E.; Holloman v. Copeland, 10 Ga., 79; Talbird, v. Verdier, 1 Desaus., 592; Bowen v. Hoxie, 137 Mass., 527; McCullum v. McKenzie, 26 Ia., 510;
      Grosvenor v. Fogg, 81 Pa. St., 400; Morgan v. Davenport, 60 Tex., 230; Hughes v. Hughes, 37 Ind., 183, 185; Carter v. Reddish, 32 Ohio St., 1.
   By the Court :

We agree with counsel for plaintiff in error, that the power to dispose of property in this state by will is conferred by statute, and that the authority to make the will is found in section 5914 of the Revised Statutes.

By virtue of this section “Any person of full age and of sound mind and memory, and not under any restraint, having any property, personal or real, or any interest therein, may give and bequeath the same to any person by last will and testament lawfully executed.” This is an old and general provision, a,nd yet it does not leave to the owner of property a free hand to dispose f property, without limitations and restrictions. Th > very next section of the wills act, section 5915, places a limitation on the will making power, by providing that where the testator leaves issue of his body or an adopted child, devises and bequests to charitable purposes shall be invalid, unless such will shall have been executed at least one year before the decease of the testator.

The manner of execution of such instrument, and all steps for the probating and recording of the same, as well as the means of executing its provisions, are furnished by statute.

Another notable limitation on testamentary disposition exists in section 4200, Revised Statutes, restricting the entailment of estates by deed or will, and there are other instances of legislative restraint found in our wills act. Yery prominent among them is section 5961, which directly bears upon and determines the controversy in this case. It reads:

“Section 5961. [Child reported dead, or born after will made, to have portion of estate.] When a testator, at the time of executing his will, shall have a child absent and reported to be dead, or having a child at the time of executing the will, shall afterward have a child who is not provided for in the will, the absent child, or the child.born after the execution of the will, shall take the same share of the estate, both real and personal, that he would have been entitled to if the testator had died intestate,” etc.

The remainder of the section not quoted, relates to the method of ascertaining and supplying to the after-born child his share of the estate. The record in this case shows, and it is stated in the will itself, that, when it was executed the testatrix had one child then' living — George Gabriel Lushey — and, after its execution she gave birth to another child, Harry W. Lushey — who is the defendant in error. The event of his birth, after the will was made, brought section 5961 into operation, and when the testatrix died, in June, 1878, Harry W. became her heir at law and entitled to one-half of the estate. This is so, by reason of this statute, although the testatrix endeavored to guard against it by express provision, where she said: “Should any child or children, we having now only one, George Gabriel, be born to me hereafter, it shall in no ioise alter or revoke this toill and' testament This indicates that the law of such event was under consideration when the will was drafted, and it may have been then thought, as is now argued for plaintiff in error, that a clear expression concerning an after-born child and her wishes touching it, stated in the will, would avoid the force of section 5961; and we are referred to section 5959, as containing a provision which will permit such a construction. But section 5959 does not cover a case where there is a child living at the time the will is executed, but provides for. a very different situation. These two sections are independent but not inconsistent provisions. Each covers a case not covered by the other. Both have been in force as far back as 1840, at least. One of them much longer than that.

Counsel urge that, having contemplated the probability of the birth of another child after the date of her will, and having, expressed a determination to disinherit it, her will should stand and that we should so construe section 5961 as to let it have its intended effect. But the language is not a provision for, but is one against the after-born child.

It seems to us that the open and avowed disregard of the words of the statute is entitled to no higher consideration than a silent omission to mention and provide for such child. One course is no more potent than the other. She could neither suspend nor repeal the law, and it is not within the power of this court to do so. Many cases have been cited from other states construing their statutes on kindred subjects, but they are fruitless here, when we consider the plain and uncompromising language of our own legislation. We do not undertake to give reasons for the difference between section 5959 and section 5961, but it is our duty to enforce each when a case arises to which one or the other applies.

By the terms of the will, the testatrix cut off George Gabriel, the living child, and by the subsequent birth of Harry W. and the death of the testatrix, he inherited one-half of the estate of the mother just as if she had died intestate.

It follows, therefore, that George Lushey, the husband of the testatrix, when he gave the mortgage to plaintiff in error, owned but one-half of the premises described in the'mortgage, and that the judgment of the court of common pleas was right, and that the circuit court did not err in affirming the judgment.

Judgment affirmed.

Burket, Davis and Price, JJ., concur.


author: By the Court:

text:
    Brenzinger et al. v. The American Exchange Bank.
    , Party granted new trial — On- condition of giving bond to secure possible judgment — Bondsmen estopped to deny validity of bond.

    When the trial court is of the opinion that a party is not in strict right entitled to a new trial, but grants to such party a new trial on condition that he give bond to pay any judgment which might be recovered on such new trial, and he complies with the condition and has the benefit of the new trial, the parties to such bond are estopped from claiming that such bend is invalid.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Lucas county.

      Mr. W. H. A. Read, for plaintiffs in error, cited and commented upon the following authorities:

      United States v. Freight Assn., 166 U. S., 290; 15 Enc. Pl. & Pr., 284, 287; Brown v. Byam, 59 Ia., 52; Worth v. Wetmore, 87 Ia., 62; Niagara Ins. Co. v. Rodecker, 47 Ia., 162; Watson v. Paine, 25 Ohio St., 340; Frazier v. Williams, 24 Ohio St., 625; Braden v. Hoffman, 46 Ohio St., 639; Wellman v. Wellman, 6 C. D. 61; 9 C. C.R., 72; 4 Am. & Eng. Enc. Law (2 ed.), 629, 674; Beach on Modern Law of Contracts, Sec. 1534; Kent’s Com., 476; Haws v. Marchant, 1 Curt. (U. S. ), 140; Whitehead v. Governor, 6 Port. (Ala.), 343; Brown v. Brown, 37 Minn., 128; Hargrave v. Boero, 23 S. W. Rep., 403; Anderson v. Railway Co., 54 N. Y., 335; Johnson v. Taylor, 5 Smed. & Mar. (Miss.), 92; Howell v. Mills, 53 N. Y., 322; Ancoin v. Guillot, 10 La. An., 124; Casey v. Malidore, 53 Pac. Rep., 60; Bonnett v. Townsend, 17 N. Y. Supp., 566; Honduras v. Soto, 112 N. Y., 310; 2 Hill’s Am. Code, Sec. 400; Yates v. Guthrie, 119 N. Y., 420; Halsey v. Flink, 15 Abb. Pr., 367; Commonwealth v. Wistar, 142 Pa. St., 373; People v. Cabannes, 20 Cal., 525; Railway Co. v. McClure, 58 Kan., 109; Bank v. Benjamin, 61 Wis., 512; Heffner v. Scranton, 27 Ohio St., 579; Thompson v. Buffington, 7 Dec., 557; 7 N. P., 134; Railroad Co. v. Lee, 32 S. W. Rep., 249.

      Mr. TJ. G. Denman and Messrs. Smith d Beckwith, for defendant in error, cited and commented upon the following authorities :
    Hilliard on New Trials, 6, 14, 15; Heffner v. Scranton, 27 Ohio St., 579; Haggin v. Christian, 1 A. K. Marsh. (Ky.), 430; Itwin v. Riley, 68 Ga., 605; Prunty v. Mitchell, 30 Gratt. (Va.), 247; Gaines v. Dailey, 1 J. J. Marsh. (Ky.), 479; Brentam v. Musgrove, 25 Ill., 152; 3 Harrison (N. J.), 47; Jackson v. Eddy, 2 Cow., 598; Dean v. King, 22 Ohio St., 118, 134; Fenn v. Railway Co., 13 S. W. Rep., 273; Johnson v. Taylor, 3 Smed. & M., 92; Ex parte Beavers, 34 Ala., 73; Casey v. Malidore, 53 Pac. Rep., 60; Brooks v. Railway Co., 110 Cal., 173; Rice v. Gashire, 13 Cal., 53; Bulkin v. Ehret, 20 N. Y., 731; Stokes v. Stokes, 56 N. Y., 637; Battelle v. Connor, 6 Cal., 140; Prunty v. Mitchell, 30 Gratt., 247; Stephens v. Broadmax, 5 Ala., 258; Hoyt v. Murphy, 23 Ala., 456; Dewey v. Leonhardt, 37 Mo. App., 517; Ferguson v.
      Gilbert, 16 Ohio St., 88; Smith v. Bailey, 26 Ohio St., 1; Durrell v. Boyd, 9 Ohio St., 72; Sedan v. Church, 29 Kan., 190; Railroad Co. v. Rahmann, 22 Ohio St., 446; Haldeman v. Johnson, 54 Pac. Rep., 507; Prunty v. Mitchell, 30 Gratt., 251; Garoutte v. Holey, 38 P. R., 194; Johnson v. Johnson, 47 S. W. Rep., 883; Knight v. State, 54 Ohio St., 365; Lainey v. Bradford, 4 Rich., 1; Edwards v. Lewis, 18 Ala., 494; Thwaites v. Sainsbury, 7 Bing., 437; 1 Graham & Waterman on New Trials, 604; Burrall v. Acker, 23 Wend., 606; Miller v. Rhoades, 20 Ohio St., 494; Mays v. Joseph, 34 Ohio St., 22; Martin v. Bolenbaugh, 42 Ohio St., 508.
   By the Court:

In an action by the defendant in error against the plaintiff in error, William F. Brenzinger, a verdict was rendered for the bank. Brenzinger made a motion for a new trial. The journal entry as to the motion is as follows: “This cause coming on for hearing on the motion of the defendant for a new trial, the court on consideration thereof ordered that said motion be overruled, unless said defendant give bond to the plaintiff in the sum of five hundred dollars ($500) with sufficient surety, to the approval of the court, conditioned that said defendant will pay and satisfy any judgment which said plaintiff may recover against said defendant in said action.” The bond was given, Carrie K. Brenzinger being security thereon, and a new trial was thereupon awarded. On the new trial the bank recovered a judgment against Brenzinger, and being unable to collect the same from him, brought suit on the bond. Both defendants demurred to the. petition on the ground that it did not state a cause of action. The demurrer was overruled and judgment-was rendered by tbe court of common pleas for the plaintiff, which was affirmed by the circuit court.

It does not appear in this case that William F. Brenzinger was entitled to a new trial in the original action. On the contrary it appears that the court overruled his motion for a new trial and that he did not predicate error upon that judgment, but allowed it to stand. The court, however, gave him the opportunity to have a new trial on condition that he would give bond for the payment of such judgment as might be obtained against him on such new trial. He did not complain of this, gave the bond and had his opportunity under the new trial, and having had the fruits of his acceptance of the condition, now seeks to repudiate his bond. We think that the plaintiffs in error are not only bound by their agreement under the circumstances; but that the court having found that Brenzinger was not in strict right entitled to a new trial, might in its discretion allow a new trial upon the. reasonable condition named, at least if the other party did not object. The judgments of the circuit court and of the court of common pleas are

Affirmed.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.


text:
    Huston v. The Traveler's Insurance Company.

      Accident insurance policy — Restriction as to entering or leaving moving trains — Plaintiff injured when about to step on can— Application of rule — Personal injury — Construction of contracts.

    An accident policy contained this exception: “This insurance does not cover entering or trying to enter or leave a moving conveyance using steam as motive power.” The insured was walking along a railroad track, the ground being slippery and icy, when a freight train overtook him, going slowly, and it occurred to him that he would step on the caboose and ride, and as he was about to step on, but before he had touched the car, he slipped and fell, and his left foot was crushed by the hind wheels: Held, that what he did after the purpose to step on the car caused him to change his conduct from that of walking along the track, to that of making preparation to step on the car, was within the exception, whether be had caught hold of the car or not.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Summit county.
    The action was brought by the plaintiff in error, also plaintiff below, against the insurance company to recover one-third part of a $5,000 accident policy, the injury caused by the accident having resulted in the amputation of the left foot of the plaintiff.
    The material facts are that he was walking along the west side of the track of the Erie Railway at Akron going north about seven o’clock in the evening of January 21, 1897, when he was overtaken by a freight train going in the same direction, a little faster than he could walk, and as the caboose was nearing him he looked around and it occurred to him that he would step onto the caboose and ride up to Exchange street and step off, and as he was about to step on, but before he had taken hold of the caboose in any manner, but while he was expecting to do so, he slipped and fell, the ground being icy, and in falling his left foot got under the rear wheels and was crushed.
    The policy contained the following:
    “This insurance does not cover * * * violating law; voluntary exposure to unnecessary danger; entering or trying to enter or leave a moving conveyance using steam as a motive power; being in or on any such conveyance not provided for the transportation of passengers; being on a railway roadbed.”
    The court charged the jury as follows:
    “If he intended to take this car and had started to reach it, and before actually reaching the point where he could enter, and had not taken hold of or was clinging to the car in any manner or attempting to enter it, but slipped upon the ground in such a manner that his foot was crushed by the wheel of the passing car, he would not be within the terms of this exception.”
    The jury returned a verdict in favor of the plaintiff, a motion for a new trial was overruled, and judgment entered upon the verdict. Proper exceptions were saved wherever necessary.
    The circuit court reversed the judgment on the ground that it regarded the above charge as erroneous. Thereupon the plaintiff came here seeking the reversal of the circuit court and an affirmance of the common pleas.

      Messrs. Musser & KoKler and Mr. F. H. Waters, for plaintiff in error.

      Messrs. Allen & Cobbs, for defendant in error.
   By the Court:

The part of the charge complained of was erroneous, and the circuit court was right in reversing the judgment of the common pleas.

While the meaning of such clauses in an accident policy should he construed with fair strictness against the company, there should be no strained or unnatural construction put upon the acts of the insured to save such acts from coming within such exceptions.

In this case the plaintiff was walking along the railway on slippery icy ground, and it occurred to him that he would step upon the caboose, and he thereupon acted upon that intention, and changed from walking along the track on the slippery ground, to-making preparation to step on the caboose, and from the moment that he so changed his conduct of walking along the track, and took on the conduct of attempting to step on the caboose, that is, of trying to enter the caboose, and whatever he did in his preparation to so step upon the caboose was an act in trying to-enter it, and was within the exception, whether he had then taken hold of the car or not. The getting into position on a slippery place to grab hold of the-caboose as it would come along by his side, would be more likely to cause a fall, than the taking hold of the handle bars of the caboose itself.

With this view of the law it will be seen not only that the reversal was right, but that several other parts of the charge were wrong.

Judgment affirmed.

Burket, Davis, Shauok and Price, JJ., concur.


author: By the Court.

text:
    Harmon v. State of Ohio.

      Protection of life and property from incompeteney of engineers, etc. — Aci of March 1, 1900 (94 O. L. 38) — Act invalid as in-conflict with section 2 of hill of rights, and section 1 of article 2 — Constitutional law.

    The act of March 1, 1900, 94 O. I,., 33, entitled “An act for the*! better protection of life and property against injury or dam- 1 age, resulting from the operation of steam engines and boilers by incompetent engineers an'd others, and to repeal an act therein named,” known as the Roberts Law, is in conflict with the common welfare clause of the constitution, and also in conflict with section 2 of the bill of rights, and. section 1 of article 2, and is therefore unconstitutional and. void.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Butler county.
    E. H. Harmon, plaintiff in error, having been appointed and qualified district examiner, under the act of March 1, 1900, 94 O. L., 33, known as the “Roberts. Law,” entitled “An Act for the better protection of life and property against injury or damage, resulting-from the operation of steam engines and boilers by incompetent engineers, and others, and to repeal an. act therein named,” the prosecuting attorney of Butler county filed his petition in the circuit court of that county in quo warranto to oust said Harmon from said office, claiming said act to be unconstitutional.
    The circuit court held the act to be unconstitutional and rendered judgment of ouster, and thereupon Mr.. Harmon filed his petition in error in this court, seeking to reverse the judgment of the court below.

      . Mr. J. M. Sheets, attorney general, and Mr. S. W. Bennett and Mr. J. E. Todd, for plaintiff in error, cited and commented upon the following authorities:

      Cincinnati v. Steinkamp, 54 Ohio St., 284; 45 W. L. B., 443; Whitney v. Gill, 8 Circ. Dec., 450; 15 C. C. R., 648; Blair Brick Co. v. Waltz, 8 Circ. Dec., 742; 15 C. C. R., 718; Sutherland on Stat. Interp., Secs. 175, 176; State v. Smith, 48 Ohio St., 211; 4 Blackstone Com., 162; Cooley’s Const. Limit., 572; Thorpe v. Railroad Co., 27 Vt., 140; State v. Gardner, 58 Ohio St., 599; Adler v. Whitbeck, 44 Ohio St., 539; Senior v. Ratterman, 44 Ohio St., 661; State v. Turnpike Co., 37 Ohio St., 481; State v. Nelson, 52 Ohio St., 88; Barbier v. Connolly, 113 U. S., 27; Railroad Co. v. Pennsylvania, 134 U. S., 232; Brannon’s 14 th Amendment, 168; Slaughter House Cases, 83 U. S. (16 Wall.), 36; Railroad v. Mathews, 165 U. S., 1; Converse, In re, 137 U. S., 624; Rahrer, In re, 160 U. S., 545; France v. State, 57 Ohio St., 1; Railroad Co. v. Commissioners, 1 Ohio St., 88; Railroad Co. v. Smith, 70 Ga., 694; People v. Brooks, 101 Mich., 98; 6 Am. & Eng. Ency. Law (2 ed.), 1029; Express Co. v. Railroad Co., 111 N. Car., 463; Sinks v. Reese, 19 Ohio St., 306; Renner v. Bennet, 21 Ohio St., 431; State v. Lysight, 11 Re., 518; 27 W. L. B., 238; Moore v. State, 48 Miss., 147; Metropolitan Board of Excise v. Barry, 34 N. Y., 663; Butchers’ Union v. Crescent City Co., 111 U. S., 746; Railroad v. Kercheval, 16 Ind., 84; Railroad Co. v. McClelland, 25 Ill., 140; Cooley’s Const. Lim., 723; Mobile v. Kimball, 102 U. S., 691; Smith v. Alabama, 124 U. S., 465; Railroad Co. v. Alabama, 128 U. S., 96; Railroad Co. v. Lowe, 114 U. S., 525; 2 Story Const., Sec. 1219; Railway Co. v. McGlinn, 114 U. S., 542.

      Mr. Warren Gard, prosecuting attorney; Mr. James E. Neal and Mr. W. M. Am,pt, for defendant in error, cited and commented upon the following authorities:

      Rodgers v. Adsit, 73 N. W. Rep., 381; Welton v. Missouri, 91 U. S., 275; Walling v. Michigan, 116 U. S., 446; State v. Gardner, 58 Ohio St., 599; State v. Hinman, 65 N. H., 103; State v. Pennoyer, 65 N. H., 113; Fraser v. McConway, 82 Fed. Rep., 257; Tiedeman P. P., Sec. 85; Beebe v. State, 6 Ind., 501; State v. Hancock, 48 Atl. Rep., 1023; State v. Gravett, 65 Ohio St., 289; Williams v. Donough, 65 Ohio St., 499; Shawnee Co. (Commrs.) v. Carter, 2 Kan., 115; Sedgwick on Stat. and Const. Law, 177; Hengst v. Cincinnati, 9 Dec., 730; 7 N. P., 1; Plymouth v. Schultheis, 35 N. E. Rep., 12; Bessonies v. Indianapolis, 71 Ind., 189; Richmond v. Dudley, 129 Ind., 112; Walsh v. Denver, 10 Colo., 407; Yick W. v. Hopkins, 118 U. S., 356; Lumber Co. v. Cicero, 51 N. E. Rep., 758; St. Louis v. Packing & Prov. Co., 141 Mo., 375; Eureka v. Wilson, 15 Utah, 67; Maxwell v. State, 40 Md., 273; United States v. Rider, 50 Fed. 406; United States v. Bridge Co., 45 Fed. 178; Railroad v. People, 175 Ill., 359; United States v. Ross, 5 Appeal Cases, 241.
   By the Court.

The only question involved in this case is the constitutionality of what is known as the “Roberts Law.”

The act provides for the appointment of a chief examiner by the governor with the advice and consent of the senate, and said chief examiner with the approval of the governor, to appoint six district examiners, each to serve in a district to be formed by the chief examiner.

Section six of the act is as follows :

“Any person who desires to act as steam engineer, shall make application to any district examiner of steam engineers for a license so to act, upon a blank furnished by the engineer, and if, upon examination, the applicant is found trustworthy and competent, a license shall be granted him, to have charge of, or to operate any steam plant. Such license shall continue in force for one year, unless after proper hearing-it is revoked for intoxication or other sufficient cause, the said license to be renewed yearly.”

By this section the examiner is made the exclusive judge as to whether an applicant is trustworthy and competent. No standard is furnished by the general assembly as to qualification, and no specifications as. to wherein the applicant shall be trustworthy and competent, but all is left to the opinion, finding and caprice of the examiner. He is the autocrat with unlimited discretion, without rules prescribing the qualifications of applicants for license, only so that, he finds them trustworthy and competent. There being six districts and six examiners, each may have his own notions as to what shall constitute an applicant trustworthy and competent, and so there maybe in the first instance as many different standards in the state as there are examiners, whereas the standard should be uniform throughout the state. True, by section nine an appeal is given to the chief examiner from the action of refusing or revoking a license, but here again the power of the chief examiner-is supreme and without having rules for his guidance prescribed by the general assembly; the only provision being that if upon investigation he finds that the district examiner was justified in refusing or revoking such license, he shall sustain him, but otherwise he shall order such license to be given.

Thus allowing the examiner of a district to, in effect, make the law for his district, limited only by his will as to what shall constitute the standard of the ■qualification of engineers, is granting legislative power to such examiner, and the appeal to the chief •examiner does not change the matter.

By section one of article two of the constitution all legislative power is vested in the general assembly, and this power cannot be delegated to individuals or officers. Mathews v. Murphy, 63 S. W. Rep., 785.

Said section six of the Roberts law is therefore in conflict with said section one of article two-of the constitution, and is void.

It is urged that this is not legislative but adminis-, trative power; but this cannot avail. The constitution does not recognize such a power as administrative power. The constitution provides only for legislative, executive and judicial powers, and what is denominated in some other states as administrative power falls in this state within one of the three great powers recognized by our constitution, legislative, executive and judicial. This court has in several opinions spoken of certain powers as being administrative, but no warrant is found therefor in the constitution, and no necessity exists for such a power, as all powers are included in the legislative, executive and judicial.

Section seven of the act is as follows:

“Any engineer who has been employed continuously as a steam engineer in the state of Ohio for a period of three years next prior to the passage of this act, and who files with his application a certificate of such fact under oath, accompanied by a certificate from his employer or employers verifying the same, or who holds a license issued to him under any ordinance of a municipal corporation of this state, shall be entitled to a license without further examination. Any person to whom a license is issued under the provisions of this act shall at the expiration of one year from the date thereof be entitled to a renewal thereof for one year, unless, in the opinion of the district examiner, of his district, such renewal should be refused, in which event such person shall have the right to appeal to the chief examiner provided for in Section 9.”

To escape an examination, and yet obtain a license under this section, the applicant must have been a steam engineer in the state of Ohio for three years next prior to the passage of the act, or hold a license under an ordinance of a municipality in this state. This section confers the privilege of obtaining a license without examination on all engineers who were continuously employed as such for three years next prior to the passage of the act no matter how incompetent they may have become by reason of age, habits or other causes. And no matter how competent an engineer may be by reason of long service, if he has not been employed continuously for three years before the passage of the act, if he is short a month or more in the three years, he is denied the privilege of obtaining a licence without examination. This three year provision is clearly arbitrary and without reason. It is arbitrarily forming a favored class and is in conflict with section two of the Bill of Rights which guarantees equal protection and benefit; and it is also in conflict with the purpose for which the constitution was established, which was to promote our common welfare. This section of the act is to promote the welfare of a particular three-year class, instead of the common welfare of all. The section is therefore unconstitutional, and the two sections six and seven are so interwoven with the whole act as to be inseparable, and therefore the whole act is unconstitutional.

Judgment affirmed.

Burket, Spear and Davis, JJ., concur.