Imágenes de páginas

spect to preliminary and professional edu- | 1st day of August, 1895, are deemed lieation are void, it would seem that the ap-censed to practise. It is the rule for such pellant might have applied to the regents acts to preserve the status of those lawfully to be admitted to examination, and, upon engaged in the pursuit regulated. As said refusal, have successfully invoked the aid by the United States Supreme Court: “The of the courts by mandamus to compel his 14th Amendment does not forbid statutes admission, and that he was not at liberty to and statutory changes to have a beginning, ignore the statute altogether, and practise and thus to discriminate between the rights dentistry without being licensed. However, of an earlier and later time.” Sperry & H. as the point is not raised, we shall assume, Co. v. Rhodes, 220 U. S. 502, 55 L. ed. 561, without deciding, that if the appellant's 31 Sup. Ct. Rep. 490. objections to the statute are well taken, he That there is no objection on constituwas not subject to a criminal prosecution tional ground to such exceptions has many for violating it.

times been decided. See Dent v. West VirThe general power of the state to exact ginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. proper skill and learning of those who fol. Ct. Rep. 231; Watson v. Maryland, 218 U low pursuits involving the public health, S. 173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644; safety, and welfare, and to prescribe appro. Williams v. Walsh, 222 U. S. 415, 56 L. ed. priate tests therefor, cannot at this day be 253, 32 Sup. Ct. Rep. 137. There is nothing questioned. It has been exercised from time discriminatory in the said provision. All immemorial, and has been sustained by re- persons in the same class, i. e., those licensed peated decisions of the courts. See Dent v. / and registered in this state on a given date, West Virginia, 129 U. S. 114, 32 L. ed. 623, are treated alike. 9 Sup. Ct. Rep. 231; Watson v. Maryland, But it is said that the act prefers aliens 218 U. S. 173, 54 L. ed. 987, 30 Sup. Ct. to citizens of other states. As a matter Rep. 644; Collins v. Texas, 223 U. S. 288, of fact the contrary is the case.

A person 56 L. ed. 439, 32 Sup. Ct. Rep. 286; Hewitt holding a diploma or license to practise v. Charier, 16 Pick. 353; State v. Vander- dentistry in some foreign country, and sluis, 42 Minn. 129, 6 L.R.A. 119, 43 N. W. granted by some registered authority, and 789.

having the prescribed preliminary education, In determining whether statutory require may be admitted to examination pursuant ments are arbitrary, unreasonable, or dis to said § 166, whereas under $ 168, a person criminatory, it must be borne in mind that having the prescribed preliminary and prothe choice of measures is for the legisla- fessional education, who holds a license to ture, who are presumed to have investigated practise dentistry in any other of the the subject and to have acted with reason, United States, granted by a state board not from caprice. Legislation passed in the of dental examiners, indorsed by the Dental exercise of the police power must be reason- Society of the State of New York, may be able in the sense that it must be based on licensed on the recommendation of the denreason as distinct from being wholly arbi- tal examiners without any examination at trary or ca pricious; but when the legisla- all. ture has power to legislate on a subject, the It may seem hard that the defendant, courts may only look into its enactment who has practised dentistry for many years far enough to see whether it is in any view in other states, cannot be licensed here, or adapted to the end intended. If it is, the even permitted to take an examination to court must give it effect, however unwise test his qualifications, until he first acquires they may regard it, or however much they the requisite preliminary and professional might, if given the choice, prefer some other education; but it is difficult, if not imposmeasure as more fit and appropriate. sible, to make a classification which will not

Coming, then, to the particular provisions in particular instances seem unjust. All in of the act in question, the requirement as the same case as the defendant are treated to preliminary and professional education alike. His fundamental error consists in the is not, in and of itself, either arbitrary or assumption that a license to practise denunreasonable. A preliminary education | tistry in one state confers the like right in equivalent to a four-year high-school course all other states, whereas such license is registered by the regents and a professional recognized, if at all, only on principles of education in registered dental or medical comity. When the appellant came into this school, or both, are certainly appropriate to state he fell into the class of those who had fit one to pursue the calling of dentistry, never been licensed, unless the legislature and with the wisdom of that requirement saw fit to recognize the previous experience we have nothing to do.

of those in the like case. The appellant has no grievance from the We find nothing in the statute which can provision that those duly licensed and reg- fairly be said to discriminate in any way istered as dentists in this state prior to the ' against the citizens of other states. The

privileges and immunities secured to citi- | came up to that standard. The only excepzens of each state in the several states by tion made is in favor of those already lithe Federal Constitution are the privileges censed in this state. All others must have and immunities enjoyed by the citizens in the required preliminary and professional the latter states, and are not the special education, or its equivalent, and. unless liprivileges enjoyed by the citizens in their censed in some other state, must pass an own states. Paul v. Virginia, 8 Wall. 168, examination. A diploma or license granted 19 L, ed, 357; Lemmon v. People, 20 N. Y. by some registered authority in a foreign 562. As a citizen of the United States, country was evidently deemed the equivathe defendant is not privileged to practise lent of a dental degree from a registered dentistry in this state without a license dental school in this country, but the posso to do.

sessor is required to show that he has the Of the many cases cited by the appellant, requisite preliminary education and to pass the two bearing the most resemblance to an examination. Licenses granted by boards this case are State v. Hinman, 65 N. H. 103, of examiners in other states are recognized 23 Am. St. Rep. 22, 18 Atl. 194, and State as sufficient evidence of the licensees' qualiv. Pennoyer, 65 N, H. 113, 5 L.R.A. 709, 18 fications to be licensed in this state without Atl. 878. In those cases a statute of the examination, provided as high a standard is state of New Hampshire, regulating the exacted in such other states as in this; in practice of dentistry and medicine, was held other words, provided the preliminary and invalid because of a provision excepting professional education of such licensees has those who had resided and practised their not been less than that required in this profession in the town or city of their state. The power to determine the standard present address during all the time since exacted in other states had to be lodged January 1, 1875,--a test which was held to in some body, board, or officer. The act is be wholly arbitrary, and one having no ref. not to be condemned on the assumption erence to skill, learning, or fitness. The that the dental society will selfishly exerlearned counsel for the appellant, on oral cise the power conferred upon it to exclude argument, placed great reliance on the re- eligible licensees of other states from praccent decision of the United States Supreme tising in this. Of course, that power is not Court in Smith v. Texas, 233 U. S. 630, to be exercised capriciously or arbitrarily. 58 L. ed. 1129, L.R.A. 34 Sup. Ct. It is certainly no greater than that conRep. 681. In that case a statute of the ferred for many years in this state on state of Texas prohibiting any person from county medical societies. See People ex acting as a conductor on a railroad train rel. Dunnel v. Medical Soc. 3 Wend. 426. without having for two years prior thereto It is unnecessary to determine whether worked as a brakeman or a conductor of a the provision that fines, penalties, and forfreight train, and prescribing no other quali- feitures be paid to the State Dental Society fications, was held to be invalid for arbitrar- is valid, because the appellant is in no way ily excluding experienced and competent concerned with that question. men from obtaining employment as conduc- The judgment of conviction should be aftors, and for arbitrarily limiting the class firmed. who could secure such employment to those who had served two years as a brakeman or Werner, Hiscock, Chase, Collin, Hoa conductor on a freight train, regardless of gan, and Cardozo, JJ., concur. their fitness.

It is urged that the provision of g 168 for licensing without examination those who hold a license to practise dentistry in any

OHIO SUPREME COURT. other state, granted by a state board of

CARRIE E. HUNT, Piff. in Err., dental examiners, indorsed by the Dental Society of the State of New York, is void

FRANCIS HELD. for granting to a private corporation, association, or individual an "exclusive privilege,

(Ohio St., 107 N. E. 765.) immunity, or franchise” in violation of article 3, § 18, of the state Constitution. In

Covenant restrictive construction. the first place, the act is general and is not 1. Where the right to enforce a restrica private or local bill. In the next place, the statute should be construed as imposing Headnotes by the COUBT. a duty, rather than as conferring a privi

Note. - For multiple residence structures lege, upon the dental society. It was the

as violation of restrictive covenants, see note purpose of the statute to prescribe a stand- to Schadt v. Brill, 45 L.R.A. (N.S.) 726. ard and to provide methods to determine And see references therein for notes on rewhether the qualifications of candidates lated subjects.

[ocr errors]


[ocr errors]

tion contained in the conveyance as to the property, unless enjoined, a two-family or

1 use of the property conveyed is doubtful, double house, and that at the time the reall doubt should be resolved in favor of the straining order was allowed the excavation free use thereof for lawful purposes by the for said house had been made and a part owner of the fee.

of the easterly foundation constructed. The Same - residence double house. 2. A clause in a conveyance restricting fendant in error, and Carrie E. Hunt was

court of appeals found in favor of the dethe use of the property conveyed "for residence purposes only” does not prohibit the per petually enjoined from constructing or erection of a double or two-family house on continuing the erection of any two-family the premises.

or double house on her property, and judg.

ment was rendered against her for costs. (June 23, 1914.) RROR to the Court of Appeals for

Messrs. Thompson, Hine, & Flory, for Cuyahoga County to review a judg. plaintiff in error: ment affirming a judgment of the court The restriction that property is sold "for of Common Pleas in plaintiff's favor in an residence purposes only” is not violated by action brought to enjoin defendant from the erection of double or two-family constructing a two-family or double house dwelling house. on her property. Reversed.

Rose v. Kern, 49 Ohio St. 213, 15 L.R.A.

160, 30 N. E. 267; Ewertsen v. GerstenStatement by Newman, J.:

berg, 186 Ill. 344, 51 L.R.A. 310, 67 N. E. This was an action for an injunction 1051; American Unitarian Asso. v. Minot, brought by defendant in error on the 28th 185 Mass. 589, 71 N. E. 551; James v. Irday of July, 1913, in the court of common vine, 141 Mich. 376, 104 N. W. 631; Jones pleas of Cuyahoga county. He sought to v. Williams, 56 Wash. 588, 106 Pac. 166; enjoin the plaintiff in error, Carrie E. Hunt, 13 Cyc. 687; Hays v. St. Paul, M. E. Church, and one A. T. Sebek, a contractor, from 196 Ill. 633, 63 N. E. 1040; Walker v. any and all

urther work toward the con- Renner, 60 N. J. Eq. 493, 46 Atl. 626; Forstruction of a two-family or double house tesque v. Carroll, 76 N. J. Eq. 583, 75 Atl. on the real estate of said Carrie E. Hunt. 923, Ann. Cas. 1912A, 79; Brown v. NaHe based his right of action on a certain tional Bank, 44 Ohio St. 273, 6 N. E. 648; clause of restriction contained in the deed Re Welsh, 175 Mass. 68, 55 N. E. 1043; of purchase of the real estate owned by said Schadt v. Brill, 45 L.R.A.(N.S.) 728, note; Carrie E. Hunt. The matter was heard McMurtry v. Phillips Invest. Co. 103 Ky. in the court of common pleas on the mo- , 308, 40 L.R.A. 489, 45 S. W. 96; Tillotson tion of Carrie E. Hunt to dissolve a re- v. Gregory, 151 Mich. 132, 114 N. W. 1025; straining order theretofore allowed, and McDonald v. Spang, 55 Misc. 332, 105 N. Y was submitted to the court upon the peti. Supp. 617; Sonn v. Heilberg, 38 App. Div tion, the answer of Carrie E. Hunt, the 515, 56 N. Y. Supp. 341. reply thereto, and an agreed statement of The practical construction placed upon facts. The motion to dissolve was sus- the restriction by the parties thereto abtained, an injunction denied, and the peti-solutely compels the construction above tion dismissed at the costs of defendant in contended for.

Defendant in error thereupon ap- Elliott, Contr. § 1537; James v. Irvine, pealed the case to the court of appeals, 141 Mich. 376, 104 N. W. 631; District of and it was there heard upon the pleadings, Columbia v. Gallaher, 124 U. S. 505, 31 the evidence, and agreed statement of facts. L. ed. 526, 8 Sup. Ct. Rep. 585; 4 Wig.

It appears from the agreed statement of more, Ev. § 2462, pp. 3479, 3492; Beach, facts that the defendant in error, Francis Contr. § 721; Kling v. Bordner, 65 Ohio Held, was the owner of the easterly 25 feet St. 86, 61 N. E. 148; Thomas v. Cincinnati, of sublot 160 and the westerly 10 feet of N. 0. & T. P. R. Co. 81 Fed. 911; Gillessublot 161 in John W. Taylor & Company's pie v. Iseman, 210 Pa. 1, 59 Atl. 266; Douglas Park subdivision, and that plain-Kinney v. Hamilton County, 8 Ohio C. C. 433. titf in error, Carrie E, Hunt, was the own- The common grantor of plaintiff and deer of the easterly 30 feet of sublot 161 and fendant lost the right to enforce this rethe westerly 5 feet of sublot 162 in said striction prior to the time when it deeded subdivision; that both Francis Held and to plaintiff. Plaintiff acquired no greater Carrie E. Hunt received their conveyances rights than its grantor. directly from the allotment company, and Kerr, Inj. 2d ed. 320; Chelsea Land & in each of the deeds there was the follow- Improv. Co. v. Adams, 71 N. J. Eq. 771, 66 ing covenant of restriction: “This property Atl. 180, 14 Ann. Cas. 758; Peek v. Matis sold for residence purposes only.” It thews, L. R. 3 Eq. 515, 16 L. T. N. S. 991, further appears that said plaintiff in error, 15 Week. Rep. 689; Roper v. Williams, Carrie E. Hunt, would construct on her · Turn. & R. 17, 23 Revised Rep. 169; 16


[ocr errors]



Cyc. 1791; Korn v. Campbell, 37 L.R.A. Newman, J., delivered the opinion of the (N.S.) 15; Bowen v. Smith, 76 N. J. Eq. court: 456, 74 Atl. 675,

In addition to the claim that the erection The present character of the neighbor- of a double or two-family house is not in hood is such that the enforcement of the violation of the clause of restriction concovenant would be of no value to plaintiff, tained in her deed, plaintiff in error conand he is therefore not entitled to equi. tended that, if the erection of such a house table relief.

did violate the restriction, it has been lost Brown v. Huber, 80 Ohio St. 183, 28 to defendant in error through his own acts L.R.A. (X.S.) 705, 88 N. E. 322; Columbia or those of the common grantor.

These College v. Thacher, 87 N. Y. 311, 41 Am. acts are pleaded in the answer and are reRep. 365; Russell v. Harpel, 20 Ohio C. C. ferred to at length in the agreed statement 127; Jackson v. Stevenson, 156 Mass. 496, of facts. In arriving at a decision of this 32 Am. St. Rep. 476, 31 N. E. 691; 11 Cyc. case, however, we have found it necessary 1077.

to consider only the meaning of the clause

of restriction contained in the deed. Mr. A. C. Waid, for defendant in error:

It is the claim of counsel for defendant A double or two-family house is a violation of a clause in a conveyance restrict. in error that in the erection of a double or ing the use of the property conveyed to two-family house on her property plaintiff residence purposes only.

in error would violate the restriction clause Rose v. King, 49 Ohio St. 213, 15 L.R.A. in her deed, and that, when the words, 160, 30 N. E. 267; Burton v. Stapely, 4

“this property is sold for residence purposes Ohio N. P. N. S. 65, 74 Ohio St. 461, 78 only,” were inserted in the deeds, the sellers N. E. 1120; Boehme v. Bertram, 8 Ohio of the property clearly intended that sinC. C. Unrep. Op. 388; Round Lake Asso. v. gle houses only should be built thereon, Kellogg, 141 N. Y. 348, 36 N. E. 326; idea of a number of residences under the

and that the language used excluded the Schadt v. Brill, 173 Mich. 647, 45 L.R.A. (N.S.) 726, 139 N. W. 878; Skillman v. cede that the use of a double or two-family

of or in the same house. They conSmatheurst, 57 N. J. Eq. 1, 40 Atl. 856; house is a use for residence purposes in Koch v. Gorruflo, 77 N. J. Eq. 172, 140 Am.

one sense, but that it is not a use for resiSt. Rep. 552, 75 Atl. 767.

dence purposes “only,” and say that therein Plaintiff has not lost the right to enforce lies the distinction. We are unable to see the restriction either through his own acts the distinction they would make. The word or through the acts of the common grantor. "only” in our opinion does not change the

Lattimer v. Livermore, 72 N. Y. 174; Lin. meaning of the words “residence purposes." wood Park Co. v. Van Dusen, 63 Ohio St. If there is any doubt as to the meaning 183, 58 N. E. 576; Barton v. Slifer, 72 N. of the words employed, the doubt should be J. Eq. 812, 66 Atl. 899; Rowla v. Miller, resolved in favor of the free use of the prop139 N. Y. 93, 22 L.R.A. 182, 34 N. E. 765; erty by plaintiff in error for any lawful Lery v. Halcyon Casino Hotel Co. 45 Misc. purpose and against restrictions, for it is 289, 92 N. Y. Supp. 231; McDonald v. a well-settled rule that, in construing deeds Spang, 55 Misc. 332, 105 N. Y. Supp. 617; and instruments containing restrictions DuBois v. Darling, 12 Jones & S. 436; and prohibitions as to the use of property Knight v. Simmonds (1896] 2 Ch. 294, 65 conveyed, all doubts should be resolved in L. J. Ch. N. S. 583, 74 L. T. N. S. 563, 44 favor of the free use thereof for lawful purWeek. Rep. 580; Osborne v. Bradley (1903] poses in the hands of the owners of the 2 Ch. 446, 89 L. T. N. S. 11, 73 L. J. Ch. fee. Ewertsen v. Gerstenberg, 186 Ill. 344, N. S. 49; Landell v. Hamilton, 175 Pa. 327, 51 L.R.A. 310, 57 N. E. 1051. And again 34 L.R.A. 227, 34 Atl. 663; Brown v. Huber, defendant in error acquired no greater 80 Ohio St. 183, 28 L.R.A.(N.S.) 705, 88 rights under the restriction clause than his N. E. 322; Bowen v. Smith, 76 N. J. Eq. grantor had, and the rule that a deed is to 456, 74 Atl. 675; Tripp v. O'Brien, 57 Ill. be construed most strongly against the App. 407; Bacon v. Sandberg, 179 Mass. grantor applies here. 396, 60 N. E. 936; McGuire v. Caskey, 62 But is there any doubt as to the meanOhio St. 419, 57 N. E. 53; Ashland v. ing of the words? The word “residence," Greiner, 58 Ohio St. 67, 50 N. E. 99; Bur- as we view it, is equivalent to “residential" ton v. Stapely, 4 Ohio N. P. N. S. 65, 74 and was used in contradistinction to "busiOhio St. 461, 78 N. E. 1120; Boehme v. ness.” If a building is used as a place of Bertram, 8 Ohio C. C. Unrep. Op. 388; | abode and no business carried on, it would Sanford v. Keer, 80 N. J. Eq. 240, 40 be used for residence purposes only, whether L.R.A. (X.S.) 1090, 83 Atl. 225; Bigelow, occupied by one family or a number of Estoppel, p. 720; Johnson Co. v. Covats, 12 families. Counsel say that the words were Ohio C. D. 166.

intended to describe a type of building. We think not. The word “residence” has refer- | only, not for a number of dwellings. More ence to the use or mode of occupancy to than that, they are restricted to the use of which the building may be put. If it had it for a private dwelling or residence; and been intended that the building was to be that is not a private dwelling or residence for the use of one family only, words in which is used in the business of renting dicating such an intention would have been rooms to lodgers or tenants." used, as is frequently done, such as "a sin- The court seems to have laid stress on gle residence,” “a private residence," "a the use of the words “a” and “private," single dwelling house." And it is to be these words appearing in the report italinoted that the common grantor here, in his cized. deed to another lot owner in the subdi- The only reported case to which our atvision, used the expression : "This property tention has been called where the language is sold for single residence purposes only.” "for residence purposes only” is given the

In Rose v. King, 49 Ohio St. 213, 15 meaning claimed for it by defendant in L.R.A. 160, 30 N. E. 267, the court defines error is Burton v. Stapely, 4 Ohio N. P. N. a tenement house as a building the different | S. 65, and the case is discussed at length rooms or parts of which are let for resi- by counsel here. The common pleas judge, dence purposes.

The word “residence" as it seems, based his ruling on the language used in the clause of restriction here is, we used by this court in Linwood Park Co. v. think, used in the same sense.

Van Dusen, quoted above. The language Counsel have cited a number of cases de- under consideration in the Van Dusen Case cided by courts in other jurisdictions, but was entirely different from that before the an examination of them will disclose the court in Burton v. Stapely, and the holdfact that in those cases there was under ing of the court in the former case was not, consideration language in restriction clauses we think, an authority for the position materially different from that in the case taken by the court in the latter, nor does at bar.

it sustain the opinion of the court. In In Round Lake Asso. v. Kellogg, 141 N. the Burton Case the common pleas court Y. 348, 36 N. E. 326, there was a restriction granted an injunction in favor of the plainagainst the use of the property for business tiff, and the case was appealed to the cirpurposes, and “residence purposes” does cuit court. There the injunction was denot appear.

In Skillman v. Smatheurst, nied. Error was prosecuted to this court, 57 N. J. Eq. 1, 40 Atl. 855, this language and the judgment of the circuit court was was used: “Any building other than for reversed and judgment rendered in favor the use or purpose of a private dwelling.” of plaintiff in error on facts found by the In Schadt v. Brill, 173 Mich. 647, 45 L.R.A. circuit court. Burton v. Stapely, 74 Ohio (V.S.) 726, 139 N. W. 878, "other than a St. 461, 78 N. E. 1120. In that case plaintiff dwelling house with the usual appurte had asked for an injunction upon the nances” was under consideration. But the ground that there had been a violation of supreme court of Michigan in Tillotson v. two restrictions in the conveyance, and this Gregory, 151 Mich. 132, 114 N. W. 1025, had court may have found that plaintiff was enmade a distinction between the words “resi. titled to an injunction on account of the dence purposes” and “dwelling house,” and violation of the restriction in the conveyheld that while the latter words meant a ance other than the one restricting the use single dwelling house, the words “resi- of the property for residence purposes only, dence purposes” would not bear such con- for the circuit court found as a fact that struction.

there had been a violation of the restriction But it is claimed that the question has in reference to the location of the building been clearly decided in this state.

on the lot. The reversal of the judgment port of this, they cite Rose v. King, supra, of the circuit court does not signify necesand Linwood Park Co. v. Van Dusen, 63 sarily that this court approved the holding Ohio St. 183, 58 N. E. 576. In the former of the court of common pleas as to the case the question was not before the court, meaning of the clause restricting the use and in the latter the court was interpret- of the property for residence purposes only. ing a provision in a lease that required the In Brown v. Huber, 80 Ohio St. 183, 28 lessee to use the premises “for the purpose L.R.A. (N.S.) 705, 88 N. E. 322, in the coveof a private dwelling or residence." On nant in the deed it was provided : “That the page 200 of 63 Ohio St., the court say: only buildings put upon said lot shall be "The plain provision of the covenant is a residence and the necessary attachments, that the leased premises shall be used for and that it shall be used for no other purthe purposes of a dwelling or residence' pose than that of family residence, and

In sup

« AnteriorContinuar »