trial accident board of the accident, and a | amounting to a waiver of his right to defend commission on arbitration was formed, which against them. made an award in favor of the employé. This course was warranted under the circumstances. Burt v. Brigham, 117 Mass. 307. A claim for review by the industrial accident board was filed by the employé, but later withdrawn before any hearing. Hence by part 3, § 7, as amended by St. 1912, c. 571, § 12, the decision of the arbitration committee stood and became enforceable in the superior court. The insurer as permitted by the act took proper proceedings in that court, and a decree correct in form was entered for the payment of compensation in accordance with the report of the arbitration committee. The employé attempted to appeal from this decree. But it is plain from part 3, § 11, as amended by St. 1912, c. 571, § 14, that no appeal lies under these circumstances from the decree of the superior court. That section provides that when a decree of the superior court has been entered "there shall be no appeal therefrom where the decree is based upon a decision of an arbitration committee." This is a provision obviously intended for the benefit of the employé, to prevent any de lay in receipt by him of the compensation. The machinery of the act is, first, a decision by the arbitration committee. If there is any dissatisfaction with this, the next step is a review by the industrial accident board. If no such review is insisted upon, then there can be no further controversy on the facts, and the superior court, unless there is legal reason to the contrary, must enforce the award so made. The express provision of the act is that there shall be no appeal. In cases of errors of law apparent on the face of the record, they may be corrected by certiorari, or perhaps by some other appropriate remedy. Young v. Blaisdell, 138 Mass. 344; Kiely v. Corbett, 205 Mass. 158, 91 N. E. 410. Plainly in the case at bar there is no irregularity or want of jurisdiction, and the proceedings are not open to objection. As there was no ground for appeal from the decree of the superior court, that appeal must be dismissed. Exceptions overruled. Appeal dismissed. (89 Ohio St. 168) CRONEIS BROS. v. TOLEDO COMPUTING SCALE CO. (No. 13604.) (Supreme Court of Ohio. Dec. 9, 1913.) (Syllabus by the Court.) BILLS AND NOTES (§ 111*)-RIGHT OF ACTION -CONDITIONAL SALE CONTRACT. Notes, Cent. Dig. § 222; Dec. Dig. § 111.*] [Ed. Note.-For other cases, see Bills and Error to Circuit Court, Crawford County. Action by the Toledo Computing Scale Company against Croneis Bros. A judgment of the court of common pleas, sustaining defendant's motion for judgment on the pleadings, was reversed by the circuit court, and defendant brings error. Judgment of circuit court reversed and that of common pleas affirmed. William C. Beer, of Bucyrus, for plaintiffs in error. W. C. McCullough, of Cleveland, for defendant in error. PER CURIAM. The defendant in error made a written contract with the plaintiffs in error for the sale to them of a pair of scales. It was a conditional sales contract, and, contemporaneously with its execution, plaintiffs in error executed and delivered to the company their ten promissory notes in the sum of $7.50 each, due in one, two, three, four, five, six, seven, eight, nine, and ten months from date. The scales were shipped to the plaintiffs in error, and shortly thereafter they were returned to the defendant in error and the contract repudiated. The company refused to accept the return of the scales and brought suit on the notes before a justice of the peace, where judgment was rendered for the defendant. On appeal to the common pleas court, the company in its petition set up the notes in ten separate causes of action. Croneis Bros. answered, denying any liability on the notes, set out the contract, and averred that it was void because in violation of sections 4155-1 et seq., Revised Statutes. By its reply the defendant in error admitted the execution of the contract and asserted its binding force and effect as well as the validity of the notes. The plaintiffs in error then filed a motion for judgment on the pleadings, which was sustained by the court of common pleas. On error the circuit court reversed this judgment, and these proceedings are brought to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas. The contract referred to contains the following language: "Should there be any failure to meet payments or to execute notes for deferred payments, it is agreed that the full amount of purchase price shall at once become due and payable. Should there be any default in the payment of any note it is agreed that all the remaining notes shall at once become due and payable, anything in the notes to the contrary notwithstanding. In default of any payment you, or your agent, may take possession of and remove said scale without legal process; and in such case, all payments theretofore made by me under this order shall be deemed and considered as having been made for the use of said scale during the time the same remained in my possession, and shall be retained and kept by said company as such payment. In the event of the Where notes are executed and delivered contemporaneously with the execution and pursuant to the terms of a contract for the conditional sale of personal property which contains provisions in contravention of section 4155-1 et seq., Revised Statutes, the payee of the notes cannot maintain an action thereon, in the absence of conduct on the part of the maker *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes refusal to accept said scales when tendered, it is agreed that the sum first above mentioned, less any previous actual cash payments, shall at once become due and payable as liquidated damages, and not as a penalty." (89 Ohio St. 230) TOLEDO DISPOSAL CO. v. STATE. (Supreme Court of Ohio. Jan. 13, 1914.) POLICE REGULATION -- In the exercise of the police power, the state and municipal authorities may make all such provisions as are reasonable, necessary, and appropriate for the protection of the public health and comfort, and when any such provision has a real and substantial relation to that object and does not interfere with the enjoyment of private rights beyond the necessities of the situation, every intendment is to be made in favor of its lawfulness. The question presented is whether or not this contract and the notes given in consid-1. eration thereof are enforceable. Pertinent parts of the statute are as follows: "Whenever such property is so sold or leased, rented, hired or delivered it shall be unlawful for the persons who so sold, leased, rented, hired, delivered or his assigns or the agent or servant of either their agent or servant to take possession of said property, without tendering or refunding to the purchaser, lessee, renter, or hirer thereof or any party receiving the same from the vendor, the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed 50 per cent. of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed, in such contract or not, unless such property has been broken, or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed: Provided, that the vendor shall not be required to tender or refund any part of the amount so paid unless said amount so paid to the vendor exceeds 25 per cent. of the contract price of the property." A penalty is provided by statute for the violation of the provisions of the above act. It will be observed that the portion of the contract above quoted provides for the doing of things which are in direct conflict with the statute. The contract is an entirety. One of its considerations is the promise to permit the doing of the illegal things referred to. The notes sued on were provided for and were executed and delivered pursuant to its [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.*] 2. CRIMINAL LAW (§ 13*)—CRIME—WHAT CON STITUTES. No criminal prosecution can be sustained in Ohio except for an act done in violation of a statute or ordinance legally passed; and the courts will not construe that to be a crime punishable under one statute which was done under authority especially granted by another statute. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 13, 14; Dec. Dig. § 13.*] 3. NUISANCE (§§ 59, 65*)-"PUBLIC NUISANCE" -EFFECT OF STATUTE. A "public nuisance" arises out of the violation of public rights or the doing of unlawful acts; and if the Legislature, by a law passed within its legislative power, authorizes an act to be done which, in the absence of the statute, would be a public nuisance, such act ceases to be legally a nuisance so far as the public is concerned. [Ed. Note. For other cases, see Nuisance, Cent. Dig. $$ 135, 136, 158-160, 170, 171; Dec. Dig. 88 59, 65.* For other definitions, see Words and Phrases, vol. 6, pp. 5799-5804.] 4. NUISANCE (§ 65*) CRIMINAL RESPONSI terms. The sole consideration for these notes was the contract for the sale of the scales, and these under that instrument could be retaken on default of payment of any note, BILITY. without the return of any part of any pay-ecution against a defendant for conducting a The state cannot maintain a criminal prosments made. Plaintiffs in error, having at plant and business located, constructed, and once repudiated the contract in its entirety operated under an express contract with a muand refused to accept the scales or in any nicipality, made under legislatve authority, way recognize the binding force of the in- where the plant is conducted under municipai control and regulation, with care and skill, and strument, cannot be said to have waived any in such manner as to produce the least possible of their rights to defend against it. The annoyance, and where it is all done for the purcourt will not make a new contract for the pose of conserving the health and safety of the public. parties by striking out the terms which are in contravention of law and assume that the parties would have made it without such terms. It contemplated and required the acquiescence by plaintiffs in error in the illegal The Toledo Disposal Company was conpart of the contract as much as the legal victed in common pleas of maintaining a pubpart. The fact that the defendant in error lic nuisance in violation of Gen. Code, § 12646, did not undertake to enforce the illegal and brings error from a judgment of the parts, at least while attempting to reduce circuit court affirming such conviction. the notes to judgment, does not strengthen | versed. its position. The judgment of the circuit court will be reversed and that of the common pleas affirmed. NICHOLS, C. J., and SHAUCK, JOHNSON, DONAHUE, NEWMAN, and WILKIN, JJ., concur. [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 158-160, 170, 171; Dec. Dig. 65.*] Error to Circuit Court, Lucas County. Re Plaintiff in error was indicted by the grand jury of Lucas under section 12646, General Code, for maintaining a public nuisance. The indictment charged that the defendant corporation did unlawfully and purposely use and maintain a certain building for the purpose of carrying on the business of reducing 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: "If the smells indicated did emanate from this building, and if they were offensive to the 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. Section 3677 provides that municipal corporations shall have special power to appropriate and hold real estate within their corporate limits for many purposes, among which are specified "sewage and garbage disposal plants and farms." Section 3678 enacts that in the appropriation of property for any of the purposes named in the preceding section the corporation may when reasonably necessary acquire property outside the limits of the corporation. Section 3809 authorizes a city to make a contract with any person, firm, or company for the collection and disposal of garbage in such corporation. Construing the sections above referred to in pari materia, it is manifest that the Legislature intended to JOHNSON, J. (after stating the facts as above). The Toledo Disposal Company is a corporation organized to operate a reduction plant. In 1910 it entered into a contract with the city of Toledo, under specifications prepared by the city, for the disposal of its garbage waste by a process of reduction. Thereupon the company constructed a plant at an expense of about $150,000. On the trial the company offered evidence showing that the plant was built and equipped with approved machinery, which was made upon modern, sanitary, and scientific lines; that the location, construction, and operation were prescribed, supervised, and regulated by the city of Toledo; and that the plant was operated 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 conduct did not constitute a nuisance. The contract expressly stipulated that the disposal of the garbage should be under the control of the director of public service. The contract and the ordinance and resolutions under which it was made were offered in evidence by defendant and rejected by the trial court, as was also 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. The question is, therefore, clearly presented whether the state can maintain a criminal prosecution against a defendant for conducting a plant and business located, constructed, and operated under an express contract with a municipality made under legislative authority, when the plant is conducted under municipal control and regulation, with care and 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 Any benefit that and the general welfare. 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 vided for. the right at any time after two years, when it has been decided that works of internal impermitted by law, to take over the plant at a provement which have been erected by the valuation to be determined in a manner pro-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." 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. 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. [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, The proposition stated does not involve the necessary, and appropriate for the protection conclusion that a person injured specially of the public health and comfort. and in a different way than the public would In California Reduction Co. v. Sanitary Re-not be entitled to recover damages in a civil duction 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 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 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: It "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. 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. The judgments of the courts below will be reversed and defendant discharged. Judgments reversed. 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 BOND-LIABILITY OF SURETIES FOR MATERIAL AND LABOR. 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' Liens, Cert. Dig. § 658; Dec. Dig. § 315.*] Wanamaker, J., dissenting in part. Nichols, C. J., and Johnson, J., dissenting. 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 Indexes |