garbage and manufacturing fertilizer of and from garbage and from the entrails, offal, and bones of beasts, etc., which occasioned noisome and offensive smells, and which became and were injurious to the health and comfort of the public and of persons residing in said county to the common nuisance of all the people of the state of Ohio there living and abiding. On the trial in common pleas defendant was found guilty. The trial court imposed a fine of $300 and ordered the nuisance abated. This judgment was affirmed by the circuit court, and these proceedings are brought to reverse the judgments of the courts below. Ben W. Johnson, of Toledo, for plaintiff in error. Holland C. Webster and Charles M. Milroy, Pros. Attys., and George P. Greenhalgh, Asst. Pros. Atty., all of Toledo, for the State. odors, and if you find that the conduct of said business created no more odors than were necessarily incident to such conduct of said business, your verdict must be for the defendant.' The court charged the jury that: this building, and if they were offensive to the "If the smells indicated did emanate from general public, it is immaterial for your consideration how the business was conducted and what kind of machinery was used by defendant in the conduct of its plant." The refusal to charge as requested and the quoted part of the general charge given to the jury indicate the views of the courts below on the important matter under consideration. [4] The contract referred to was made by the city under express legislative authority. Section 3649, General Code, authorizes municipal corporations to establish, maintain, and regulate plants for the disposal of sewage, garbage, and similar refuse matter. SecJOHNSON, J. (after stating the facts as tions shall have special power to appropriate tion 3677 provides that municipal corporaabove). The Toledo Disposal Company is a corporation organized to operate a reduction limits for many purposes, among which are and hold real estate within their corporate plant. In 1910 it entered into a contract with the city of Toledo, under specifications pre- and farms." Section 3678 enacts that in the specified "sewage and garbage disposal plants pared by the city, for the disposal of its gar- appropriation of property for any of the purbage waste by a process of reduction. Thereupon the company constructed a plant at an poses named in the preceding section the corexpense of about $150,000. On the trial the poration may when reasonably necessary accompany offered evidence showing that the quire property outside the limits of the corplant was built and equipped with approved make a contract with any person, firm, or poration. Section 3809 authorizes a city to machinery, which was made upon modern, sanitary, and scientific lines; that the loca- company for the collection and disposal of tion, construction, and operation were pregarbage in such corporation. Construing the scribed, supervised, and regulated by the city sections above referred to in pari materia, it of Toledo; and that the plant was operated is manifest that the Legislature intended to carefully and skillfully. The director of pub-provide for the disposal of garbage that should lic service as a witness in the case expressed his approval of the manner in which the work was conducted and his opinion that its conThe question is, therefore, clearly presented duct did not constitute a nuisance. The con- whether the state can maintain a criminal tract expressly stipulated that the disposal of prosecution against a defendant for conductthe garbage should be under the control of the ing a plant and business located, constructed, director of public service. The contract and and operated under an express contract with the ordinance and resolutions under which it a municipality made under legislative authoriwas made were offered in evidence by defend- ty, when the plant is conducted under municiant and rejected by the trial court, as was al-pal control and regulation, with care and so the testimony that the plant was operated with care and skill. Counsel for defendant in error concede in their brief, for the sake of the argument, that the "plaintiff in error could show that its plant and business were located, constructed, and conducted so as to produce the least possible annoyance." The trial court refused the request of defendant to charge the jury that: "The defendant was, during the time laid in the indictment, expressly authorized to conduct the business in which it was then engaged. It cannot therefore be prosecuted or punished merely for conducting said business, and if the jury find by a preponderance of the evidence that the defendant conducted said business at the best available location, by the use of the best available machinery, equipment, and appliances, and in a skillful and careful manner, with reference to preventing the escape of gather and be collected in the corporations, but not to restrict the place of disposal. skill, and in such manner as to produce the least possible annoyance; such authority having been given and such contract having been made for the purpose of conserving the health and comfort of the public. The inception, the creation, and the maintenance of this business was a public undertaking in the interest of the public health and the general welfare. Any benefit that defendant company may have received from the operation of the plant was purely secondary and incidental. The compensation it received from the city, $5,800 per year, was paid, as the contract price is paid for any other public work done under legislative authority. Every essential connected with the enterprise that is related to the public health and comfort rested in the control of the city. In addition, the contract secured to the city the right at any time after two years, when permitted by law, to take over the plant at a valuation to be determined in a manner provided for. An order which abates the unavoidable incidents of a business when conducted with all possible care and skill operates to prohibit the business itself, and in this case denies to the city of Toledo the right to avail itself of the provisions of the wholesome and beneficent statutes touching the subject. [1] Nothing is more firmly established than that the state and municipal authorities, in the exercise of the police power, way make all such provisions as may be reasonable, necessary, and appropriate for the protection of the public health and comfort. In California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 26 Sup. Ct. 100, 50 L. Ed. 204, Justice Harlan says: "This court has said that 'the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.'" It is further said: "Every intendment is to be made in favor of the lawfulness of the exercise of municipal power making regulations to promote the public health and safety."" [2] The mode of disposing of garbage and refuse matter is one of the difficult questions involved in municipal sanitation. Its great importance is not doubted. It is true that there has not yet been complete agreement as to the best and most appropriate method for the disposal of garbage and refuse material; but the testimony tendered and rejected shows that the city of Toledo made every effort to proceed on the most modern and scientific plan. The city in the discharge of its duty to safeguard the health of its people pursued the course pointed out by the state. There is no ground to question the good faith of all concerned. The entire enterprise has a "real and substantial relation" to the very proper object for which it was instituted; and under the rule stated every intendment is to be made in favor of its lawfulness. There are no common-law crimes in Ohio. No act can be punished criminally except in pursuance of a statute or ordinance lawfully enacted. Mitchell v. State, 42 Ohio St. 383, and cases there cited. It would seem to be incontrovertible that the court would not construe that to be a crime punishable under one statute which was done in the exercise of powers specifically granted by another statute. Such a holding would be contrary to established rules of construction. It would in effect attribute to the Legislature a disregard of wise public policy. [3] In Joyce on Nuisances, § 67, the rule is stated: "It is a general rule that an act which has been authorized by law cannot be a public nuisance, and that the state cannot prosecute as it has been decided that works of Internal improvement which have been erected by the state for the benefit of its citizens do not become a public nuisance from the fact that the neighborhood is thereby rendered unhealthy by the obstruction of running water and consequent overflowing of adjoining lands, and that the character of such works is not changed by the fact that they are transferred to a private corporation which is required to maintain the same for the purposes of their creation." This rule is also declared in Sopher v. State, 169 Ind. 177, 81 N. E. 913, 14 L. R. A. (N. S.) 172, 14 Ann. Cas. 27; Miller v. Webster City, 94 Iowa, 162, 62 N. W. 648; Stoughton v. State, 5 Wis. 291. The proposition stated does not involve the conclusion that a person injured specially and in a different way than the public would not be entitled to recover damages in a civil suit, if the work is done in an improper manner or so as to cause unnecessary disturbance or discomfort to others. The doctrine is stated in Blanc v. Murray, 36 La. Ann. 164, 51 Am. Rep. 7, as follows: "That which is authorized by the Legislature, within the strict scope of its constitutional power, cannot be a public nuisance, but it may be a private nuisance, and the legislative grant is no protection against a private action for damages resulting therefrom. The distinction here pointed out is also stated in Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739, and in Bohan v. Port Jervis Gaslight Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711. At section 69 of his work, Joyce says: "It is a general rule that, where an act is made lawful by legislative sanction, annoyancindividual subject to this qualification that the es in connection therewith must be borne by the act must be done without negligence or unnecessary disturbance, by the one doing it, of the rights of others." There is a distinction between a case in which the thing complained of is done under a general act of the Legislature and one in which it is done under a special law of the state or under a special contract made under sanction of the state, in which the particular thing done and the manner of doing it is defined. In the former case the general law will not justify the doing of the thing in such a way as to produce a nuisance or cause injury, while in the latter it is held that the governmental authority had in view the consequences which were to follow from the doing of the particular thing, and that the state cannot sustain a criminal proceeding for the doing of the thing specifically authorized. Stoughton v. State, supra; 29 Cyc. 1198. A majority of the learned circuit court were of the opinion that the case of Garrett v. State, 49 N. J. Law, 94, 693, 7 Atl. 29, 60 Am. Rep. 592, declared the principles that rule the case at bar. In that case defendant was indicted for creating a public nuisance fertilizers from dead animals and filth, which [ The judgments of the courts below will be produced a public nuisance. The defendant claimed that he had been licensed by the board of health of the county to carry on the business, and that the license was a defense to an indictment for nuisance during its continuance. The trial court refused the request of defendant to so charge, and that ruling was affirmed. The court say: "The defendants invoke in their behalf a recognized principle that a public nuisance must be occasioned by acts done in violation of law, and that any business or pursuit which is authorized by law cannot be such nuisance. It is not denied that the Legislature have the power to make lawful, so far as the public is concerned, a work or business which by the common law would otherwise be a public nuisance." The court further say: "What he asks the court to declare to the jury as a legal rule for their guidance is that the license of this board to carry on a particular business is, under any and all circumstances, a protection against an indictment for nuisance growing out of such business. It left no room for the consideration of unnecessary or even reckless injury to the public in the mode of manufacture. This is the plain meaning of this request and had it been put to the jury as asked, no matter how willful or extensive the offense to the public may have been, it demanded, in virtue of the licenses, the acquittal of the plaintiffs in error." The business licensed in the Garrett Case was a purely private business for private profit, not in the interest of the public health or for the public welfare. It at once appears, therefore, that the decision in the Garrett Case rests upon a different state of facts entirely from those involved in the case we have in hand, and did not involve the application of the same principles. In this case the primary object in the establishment of the disposal plant was purely a public object in the interest of the public. This was the sole purpose which called forth the exercise by the Legislature of its police power. The concession that the plant and business were located, constructed, and conducted so as to produce the least possible annoyance compels the conclusion that in the whole enterprise there has been careful regard for every interest. Under the judgment and order in this case it would doubtless be impossible to operate the plant. For obvious reasons the Legislature has enacted laws to prevent the pollution of streams, and this court has enforced commonlaw and statutory rules looking to the same end. In view of this situation if the action of the trial court in the rejection of the evidence referred to and in the refusal to charge as requested, as well as in the charge itself, are sustained, it is difficult to see how our cities can avail themselves of the wise and necessary provisions which the state has made to assist in the effort to prevent nuisances and preserve the health of their people. reversed and defendant discharged. NICHOLS, C. J., and SHAUCK and WILKIN, JJ., concur. (89 Ohio St. 185) CLEVELAND METAL ROOFING & CEILING CO. v. GASPARD et al. (No. 13497.) (Supreme Court of Ohio. Jan. 13, 1914.) (Syllabus by the Court.) MECHANICS' LIENS (§ 315*) CONTRACTOR'S A bond, entered into by a contractor, in which the owner of a building is named as obligee, conditioned for the performance of the terms and conditions of a building contract between the contractor and the obligee, and for the payment of all claims contracted in reference thereto for material and labor furnished in the erection of the building, is for the protection of the owner of the building, and an action on the bond against the sureties thereon cannot be maintained by a company for the payment of claims against the contractor arising under contracts entered into between such company and the contractor subsequently to the execution of the bond, under which contracts the company thereafter furnished material and labor in the erection of the building, where the bond does not so provide. [Ed. Note.-For other cases, see Mechanics' Error to Circuit Court, Cuyahoga County. Action by the Cleveland Metal Roofing & Ceiling Company against Nick J. Gaspard and others. From judgment of the circuit court affirming judgment of the common pleas court sustaining a demurrer to the petition, plaintiff brings error. Affirmed. Plaintiff brought an action in the common pleas court of Cuyahoga county against the defendants, Nick J. Gaspard, George Meier, and Catherine Gaspard, and from the petition it appears that plaintiff, on the 10th day of November, 1909, entered into a contract with said defendant Nick J. Gaspard to complete the sheet metal work and gravel roofing on an apartment building for the F. Zimmerman Realty Company in the city of Cleveland for the sum of $436, and that on or about the 17th day of May, 1911, plaintiff completed said work in accordance with said contract; that on or about the 28th day of April, 1910, plaintiff entered into a contract with said defendant Nick J. Gaspard, who was erecting said apartment building, under the terms of which contract plaintiff was to furnish three standard approved tin-clad fire doors for said apartment building for the sum of $70, and that on or about the 17th day of May, 1910, it furnished said doors in accordance with said contract; that on or about the 16th day of May, 1910, it entered into another contract with said defendant Nick J. Gaspard, who For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Index was erecting said apartment building as aforesaid, under the terms of which contract it was to furnish the labor and material for the metal ceilings on the balconies of said building for the sum of $178, and that on or about the 20th day of May, 1910, it completed said work in accordance with said agreement, and it is alleged in the petition that said plaintiff rendered to said defendant Nick J. Gaspard bills for the amounts due under said three contracts, amounting in all to $684, no part of which amount has been paid. It is alleged in the petition that the defendants George E. Meier and Catherine Gaspard are sureties on a bond given by said defendant Nick J. Gaspard to the F. Zimmerman Realty Company, the owner of the apartment building, of which bond the following is a copy: "Know all men by these presents: That N. J. Gaspard, George E. Meier and Catherine Gaspard of the city of Cleveland, county of Cuyahoga and state of Ohio, held and firmly bound unto the F. Zimmerman Realty Co. of Cleveland, Ohio, in the sum of six thousand dollars ($6,000.00) to be paid to the F. Zimmerman Realty Co., its successors or assigns, to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, and every one of them, firmly by these presents. "Sealed with our seals, and dated this first day of Sept. in the year of our Lord, one thousand nine hundred and nine. "The condition of this obligation is such that whereas the said N. J. Gaspard on the 17th day of Aug., A. D. 1909, entered into a written agreement with the said F. Zimmerman Realty Co., whereby he contracted to provide all the materials and perform all the work for the erection and completion of the carpenter work, wooden framing, frames, sash, doors, finish, flooring, roofing, sheet metal work, marble and mosaic, mantel and tile work, glass and glazing, rough and finished hardware for a three story brick apartment building to be erected on the northeast corner of E. 86th street and Birchdale avenue, Cleveland, O., and to furnish all tools, implements and cartage thereto as shown by drawings and specifications by architect, G. B. Bohm; and whereas said contract further provided as follows: 'As a condition of this contract to furnish the owner a satisfactory surety bond as agreed in the sum of six thousand dollars ($6,000.00) to guarantee the completion of the work comprehended in this agreement, and to further guarantee the payment of any claims there may be for the payment of material and labor required in the erection of this building'; and whereas, in lieu of a surety bond, it is agreed between the said parties that said N. J. Gaspard may furnish a bond signed by individuals: Now, therefore, if the said N. J. Gaspard shall well and truly perform all the terms and conditions contained in said contract and complete said work as therein provided and pay or cause to be paid all claims contracted in reference thereto for material and labor, then the above obligation to be void; otherwise the same shall remain in full force and virtue in law. N. J. Gaspard. "Geo. E. Meier. "Catherine Gaspard. "Signed, sealed and delivered in presence of F. Zimmerman." It is further alleged in the petition that, by the terms of said bond, the defendants George the payment of all claims for material and labor furnished to said defendant Nick J. Gaspard in the erection of said building; that the material and labor furnished by plaintiff to defendant Nick J. Gaspard were used by him in the erection of said building; and that there is due plaintiff, for 'material and labor so furnished to said defendant Nick J. Gaspard in the erection of said building, the sum of $684, for which amount and interest from the 20th day of May, 1910, plaintiff asks judgment against the defendants. The defendants George E. Meier and Cath. erine Gaspard demurred to this petition upon the ground that facts sufficient to constitute a cause of action against them, either jointly or severally, were not stated therein. The demurrer was sustained by the common pleas court, and, plaintiff not desiring to amend or further plead as to said two defendants, judgment was rendered against it and in favor of said defendants George E. Meier and Catherine Gaspard, which judgment was affirmed by the circuit court. Plaintiff in error has filed a petition in error in this court, asking for a reversal of the judgment of the circuit court. F. C. Hartman, of Cleveland, for plaintiff in error. Pomerene & Karch, of Barberton, for defendants in error. NEWMAN, J. (after stating the facts as above). It is to be observed that plaintiff the Cleveland Metal Roofing & Ceiling Company, is not named in the bond, under the provisions of which it claims its right of recovery against the defendants George Meier and Catherine Gaspard, the sureties. The obligee named in the bond is the F. Zimmerman Realty Company. The bond recites the fact that the defendant Nick J. Gaspard on the 17th day of August, 1909, entered into a written agreement with the F. Zimmerman Realty Company to provide all the materials and perform all the work for the erection and completion of the carpenter work, wooden framing, frames, sash, doors, finish, flooring, roofing, sheet metal work, marble and mosaic, mantel and tile work, glass and glazing, rough and finished hardware for the apartment building. A personal bond was, by agreement, accepted in lieu of a surety bond. It is conditioned that the defendant Nick J. Gaspard shall well and truly perform all the terms and conditions contained in his agreement with the F. Zimmerman Realty Company and complete said work as therein provided and pay or cause to be paid all claims contracted in reference thereto for material and labor. The bond was executed on the 1st day of September, 1909. The contracts, under which plaintiff performed labor and furnished material for Nick J. Gaspard, were entered into subsequently thereto, namely, on November 10, 1909, April 20, 1910, and May 16, 1910, respectively. There is no knowledge of the existence of this bond at the time it entered into the several contracts with Nick J. Gaspard or at the times it furnished the labor and material thereunder, or that it relied upon the provisions of the bond for the payment of its claims against Nick J. Gaspard. Plaintiff, so far as the petition discloses, at the time the bond was executed, was unknown to the parties to the instrument and had no claim of any kind against Nick J. Gaspard. The question presented by the demurrer is whether plaintiff has a right of action against the sureties on the bond. It is urged that, under the settled law of this state that an agreement made on a valid consideration by one person with another, to pay money to a third, is enforceable by the latter in his own name, the right to proceed against the sureties on this bond exists in favor of the plain tiff. its execution, that this particular lien of the plaintiffs upon the bridge was to be discharged by Emmitt. Its existence was known to them, jecture. Indeed, if Brophy and Potter had been and they seem to have left nothing to conexpressly named as the lienholders, it is difficult to see how this would have added to the the intention of the parties. This seems to be definiteness of the bond or made more certain a conclusive answer to the suggestion that there is a want of privity between the immediate parties to the bond and the plaintiffs, which is chiefly relied upon by Emmitt as a defense." Judge Spear, in the well-considered case of C., H. & D. R. Co. v. Bank, 54 Ohio St. 60, 42 N. E. 700, 31 L. R. A. 653, 56 Am. St. Rep. 700, discusses the rule under which plaintiff here is claiming its right to recover, cites the case of Emmitt v. Brophy, supra, with approval, and refers to the language of the court in that case which we have quoted above. The learned jurist calls attention to the fact that none of the cases announcing the rule carries the doctrine farther than it is carried in the Emmitt Case, and then uses this language: the contract." An examination of the Ohio cases in which this rule is announced and approved will disclose the fact that in those cases there was an actual and fixed liability on the part "In no one of them is it held that a right to of the promisee to such third person at the sue in a stranger can be raised by mere implitime the promise was made by the obligor, will attach in favor of future creditors not cation. Nowhere is it held that the obligation and the amount for which the obligation was named and not known, and as to amounts not made was either specified or then ascertain-specified or then ascertainable, to the extent of able. In the case of Crumbaugh v. Kugler, giving to such creditors a right of action on 3 Ohio St. 544, the grantor conveyed to the grantees certain lands, part of the consideration being an agreement by the grantees to pay the debts due by the grantor, and the debts were in existence and ascertainable at the time of the transfer. Thompson v. Thompson, 4 Ohio St. 333, was a case where the purchaser of real estate agreed to pay an existing mortgage indebtedness; in Bagaley & Co. v. Waters, 7 Ohio St. 359, where Crumbaugh v. Kugler and Thompson v. Thompson, supra, are approved, the purchaser of real estate agreed to assume and pay certain debts existing at the time. In the well-known case of Emmitt v. Brophy, 42 Ohio St. 82, the court, in commenting upon the bond there under consideration, refers to the fact that, by its express provisions, Emmitt, the obligor, agreed to "pay off and liquidate all claims and demands, liens, and debts, whether in judgment or otherwise, existing against said bridge." At the time the bond was executed, Brophy and Potter had reduced to judgment their claims against the Scioto Bridge Company, the former owner of the bridge, and caused an execution to be levied on the bridge. This levy was subsisting and in full force at the time the bridge was sold to the commissioners of the county. The bond in question was given to the state of Ohio, as nominal obligee, for the use and benefit of Pike county, by Emmitt, who had owned a controlling interest in the bridge company and who received the entire purchase price of the bridge. We concur in the view thus expressed by Judge Spear, and this limitation or qualification of the rule, we think, precludes a right of recovery in favor of plaintiff against the sureties on the bond here, for, at the time of the execution of the bond, plaintiff was not claimed in his petition to be due could not be named or known, and, of course, the amount specified and was not ascertainable. The deduction to be drawn from the cases to which we have called attention, and from courts of other states which give sanction to the great majority of the decisions of the the rule under consideration here, is that, in order that the third person derive a benefit from the promise of the obligor to another person, it must appear that the contract was made and entered into directly or primarily for the benefit of such third person, and that there was a liability to such third person, on the part of the promisee, at the time of the execution of the contract. To illustrate, in Emmitt v. Brophy, supra, it was clearly the intention of the parties to the bond that the judgment creditors who held a lien on the bridge were to be directly benefited by the bond. And further there was a liability on the part of the purchasers of the bridge to discharge this judgment lien. As we view the provisions of the bond under consideration here, the same were primarily for the benefit of the owner of the building. It was a guaranty on the part of the obligors, among other things, of the payment "These facts," the court say, "are strongly of claims for material and labor required in suggestive that it entered into the contempla- the erection of the building, and was availation of the parties to this bond at the time of ble to the owner alone upon a showing that it |