Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 57 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 57 of 73)
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548 BUTZMAN V. WHITBECK.

sonal judgment has, inadvertently, as we suppose, been over-
looked by the majority, or else it has been wholly ignored.

Upon this section, 2859, rests the first cause of action
against Butzman for a personal judgment.

The second cause of action to enforce the lien against the
property is founded upon provisions contained in section
1 104. The right to join these separate causes of action is
clearly authorized by section 5021, Revised Statutes.

Section 1 104 authorizes the enforcement of the statutory
lien of taxes and assessments on real estate ^'in the same way
as mortgaged liens are enforced." Section 5021 provides that
" in an action to foreclose a mortgage given to secure the pay-
ment of money, or to enforce a specific lien for money, the
plaintiff may also ask in his petition for a judgment for the
money claimed to be due; and such proceedings shall be
had thereon, as in a civil action for the recovery of money
only.'*

The plaintiff is strictly within the terms of these several
statutes. Under section 2859 ^e has a civil action for money
only on which he is entitled to a personal judgment. By
section 1 104 he has an action in equity to enforce a specific
lien on real estate. By section 5021 plaintiff may ask for a
personal judgment as well as for the enforcement of the
specific lien, ** and such proceedings shall be had as if it were
a civil action for money only."

If, therefore, it be assumed that the action to enforce the
specific lien fails by reason of the invalidity of the last clause
of section 2, the first cause of action against Butzman stands
untouched and unaffected.

This presents for the consideration of this court the valid-
ity " of the other provisions" of the Scott law.

If it be claimed these two causes of action cannot be joined
^o™™ y^ in a single petition, inasmuch as they each do not
^)WL4w oo». affect all the parties to the action, the reply is that
that question is res adjudicata. That was, perhaps, the law
prior to the amendment of the code in 1864, which is now
section 5021 R. S.

In McCarthy v. Garrahty, 10 Ohio St. 438, the court ex-
pressed a doubt of the joinder of two causes of action, one on
a note and the other on a mortgage, but held that as no ob-
jection for misjoinder was made in the court below, it could



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BUTZMAN V. WPITBECK. 549

not be taken advantage of in this court. In consequence of
that doubt the act of 1864 (now section 5021) was passed.
Malcomb v. Marshall, 29 Ohio St. 616. Soon after this act
was passed it received an authoritative construction by this
court, which has ever since been followed.

In King v. Safford, 19 Ohio St. 587, it was held that •* the
holder of a note secured by mortgage may in a single action
demand and have a judgment against all the makers of the
note, although the mortgage is executed only by part of the
makers of the note."

The fact, therefore, that one cause of action was against
Butzman, and the other to enforce the lien against him and
Mueller, is no ground for claiming a misjoinder since the act
of 1864 ; nor was it prior to that act where, as in this case, no
objection was made to such joinder in the court below.

The validity of the first section of the Scott law was, there-
fore, directly involved in the first cause of action. The courts
below either erred, or they did not, in overruling Butzman's
-demurrer.

That the majority have doubts as to the correctness of their
conclusion is manifest from the final judgment rendered. If
there was but a single cause of action, to enforce a lien, then
as they held the lien invalid, a judgment against plaintiff
should have been rendered that would bar a future action.

Instead of such a judgment the journal entry, after dis-
missing the action against both defendants, adds : ^' And it is
ordered and adjudged that the action be and the same is
hereby dismissed, but without prejudice to the defendant m
error to proceed against said Butzman in such manner as the
law may warrant.**

This leaves the whole question as to the personal liability
of Butzman open to future litigation.

We know of no reason why his liability to a personal judg-
ment should not have been decided in this case.

Every consideration of public policy seems to have de-
manded that this vexed question so fairly made should be set-
tled at the earliest practicable period. Such was the desire of
both parties, evidenced by their pleadings and arguments, and
such appears to be in the plain path of judicial duty. These
views are expressed with all proper respect for the majority.



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5 so In re Schneider,

McIlvaine, J., concurs in the foregoing dissent, and refers
to his opinion in the Frame case for his views on the second
point of the syllabus.



In re Schneider.

{Advance Case, Oregon, March, 1884.)

A " barroom or drinking shop *' means a place where the business of
selling liquor to be drunk on the premises is carried on.

The word "quarter" in an ordinance providing that a license tax shall
be payable " live days from the beginning of each quarter/' is not ambigu-
ous. From the connection in which it is used it can only mean the quar-
ter of the year for which the applicant desires a license.

A clause in a city charter authorizing it to " license, tax. r^^late, and
restrain barrooms and drinking shops," empowers the city to require of
keepers of barrooms, before granting them license, bonds to observe and
obey all city ordinances relating to barrooms, although the bond may be
conditioned in a penal sum larger than the fine which the city is authorized
to impose for breach of its ordinances.

The city cannot require a bond unreasonable as to its amount or con-
ditions.

Where the bond required was conditioned for the observance of " all
other ordinances of said city," held that, from the context, this would be
construed to refer only to all other ordinances relating to drinking shops.

Appeal from Multnomah county. Application for writ of
habeas corpus.
Drake & Stephans and N. B. Knight for appellant.
R. Williams contra.

Watson, C. J. — This is an appeal from an order of the
circuit court refusing to discharge the appellant from custody
upon a writ of habeas corptis directed to the chief of police
of the city of Portland. It is impossible to notice all the
questions raised in the argument of the case in an opinion
of reasonable length, and I shall therefore restrict my exami-
nation to such as appear fairly open to controversy. That
the legislature has the power, under the State constitution, to
invest the subordinate municipal governments with control of
the traflBc in intoxicating liquors, is not a debatable question.
The only questions of real difficulty presented in the record
arise upon the construction of the several provisions of the



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In re Schneider. 551

charter conferring power over the subject upon the city
council, and the ordinances adopted by the council in
attempted pursuance of the power conferred.

I. What is the power " to license, tax, regulate, and restrain
barrooms and drinking shops*' bestowed upon the council by
subdivision 5 of section 37 of the charter ? The "Sf*;?^'*" «»
terms "barrooms" and "drinking shops'* are S^^^^^"
obviously used here to signify the business of conducting or
keeping such places. They are susceptible of no other
reasonable interpretation in the connection in which they are
found in this provision of the charter. It is such business,
therefore, that the council is empowered " to license," etc.

In this view, the legal character of the place would be
determined by the nature of the business for which it is
occupied. The council, then, in requiring license to be taken
out before engaging in the business of disposing of liquors to
be drunk on the premises owned or occupied by the dealer,
simply exercised its rightful authority ; for the business of
disposing of liquors to be drunk on the premises where dis-
posed of is identical with the keeping of a " barroom" or
" drinking shop," and every place where liquors are disposed
of to be drunk on the spot is a " barroom" or " drinking
shop" within the meaning of the charter. There can be no
essential diflFerence between the original meaning of the word
" tavern" and the word " barroom" or " drinking shop," as used
in the charter. And a " tavern" has been judicially defined to
be " a house licensed to sell liquors in small quantities to be
drunk on the spot." State v, Chamblyss, 34 Amer. Dec. 593.
And such is doubtless the common understanding of the terms
" barroom" and " drinking shop," and the sense in which they
are employed in the charter.

It is true the language of the ordinance is somewhat broader,
covering any sale, barter, or delivery of the liquors specified
to be drunk on the premises without license ; but a reason-
able construction, in view of the particular subject before the
council at the time the ordinance was adopted, justifies the
restriction I have placed upon it. Albrecht v. People, 78 111.
510.

The proviso to subdivision 5 of section 37 of the charter
also justifies the inference that the legislature intended to con-
fer a large measure of control over the traffic in liquors upon



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552 In re Schneider.

the local government It is found in the same subdivision of
the section by which the power " to license," etc., is given,
and declares that " all persons vending liquors within the city
of Portland " are exempted from the necessitjr of taking out
license under the general laws of the State. I think, there-
fore, the ordinance fairly conforms to the power given by the
charter in this respect.

2. The objection that the ordinance is ambiguous as to the
time when the license fee is to be paid is not maintainable.
Jl?SS"?ACH ^^ ^^ ^^ ^ P^^^ ^^^^ quarter, and the term "quarter"
Imbioutt?.*""** in this connection can only mean the quarter of
the year for which the applicant desires a license. And,
inasmuch as he may not engage in the proposed business
without a license, it is apparent the " five days of the begin-
ning of each quarter" within which he is required to file the
receipt of the city treasurer for the amount of the license fee
with the city auditor, who is authorized to issue the license,
must be the five days immediately preceding the beginning
of such quarter.

3. A question is made as to the power of the city council to
pass an ordinance recjuiring a bond from ap applicant for a
license to keep a " bar-room" or " drinking-shop" within the
city limits. I think I may safely assume the existence of the
power under the authority to ** regulate and restrain bar-
Bond mat bb rooms and drinking-shops," unless some limitations
SSSkotto! can be implied from other parts of the charter.
There is no express limitation, and the authority to " regulate
and restrain," uncontrolled by other provisions, would clearly
give the power to require the bond. In fact, the requirement
of a bond from the applicant for license to engage in such
business is universally recognized as a proper and legitimate
measure of regulation and restraint wherever such power is
to be exercised. And as the State exercised the power in the
same manner until it withdrew its jurisdiction in favor of the
city government, there seems good ground for concluding
that the legislature intended the latter should enjoy the power
in the same ample and efficacious measure.

The opposite view rests upon deductions from the provi-
sions of subdivision 36 of section 37 of the charter, prescribing
the mode and measure of punishment for violations of city
ordinances.



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In re Schneider, 553

These provisions unquestionably limit the power of the
council to provide* punishment for the offence of violating
such ordinances. But the penalty in a bond of this character,
which the obligor may become liable to pay on breach of its
conditions, is not, either technically or in fact, a punishment
for a violation of any city ordinance. If the council passes an
ordinance requiring a bond as one of the conditions of grant-
ing license, and a person engages in the business for which the
license is required without first obtaining it, he might be pun-
ished for a violation of the ordinance, and the limitation as to
punishment would apply. But if he gives the bond and
procures the license, subsequent breaches of the conditions of
the bond would not amount to violations of the ordinance.
He would simply render himself liable on his contract ; and
the real question must be, not as to the power to punish, but
as to the power to exact the obligation by contract as a legit-
imate measure of regulation or restraint.

Now, is it to be inferred from the fact that the legislature
has limited the amount which the council may impose as a
punishment for a violation of a city ordinance, that it intended
to withhold the power to require a bond, because powkr to re-

• L^ XL U • !• L-l-x X ^^'^ 8ALOOK-

a person might thereby incur a liability to pay an JJi^^^J^J^S^
amount greater than could be imposed as a pun- m^ri'*'^;
ishment ? If this reasoning is admissible, no bond ^ ^IST^
can be exacted in any case under the authority wSiScS!^ ***"
given to the city government, for the mode as well as meas-
ure of punishment is prescribed, and one operates as a limita-
tion just as much as the other. Certainly, no one will contend
that the council has any authority under the provisions re-
lating to punishment for violations of city ordinances to re-
quire any bond or other security. A bond to secure in
advance the payment of penalties for violations of city ordi-
nances which may happen subsequently, and not warranted
as a measure for securing the performance of some special
or peculiar duty to the public, would be additional punish-
ment in itself, and plainly not within the authority to punish
conferred by the charter. And if a bond for this purpose
might be exacted from one, it might from all ; and, indeed, no
ordinance requiring it of any particular person or class only
could, in any event, be deemed valid. How, then, can the
city government insure the performance of public duties on



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554 ^^ re SCHNEIDER.

the part of its officers and citizens in those positions of special
trust and power where dereliction would be cheaply pur-
chased at the amount which might be exacted as punishment
for the violation of city ordinances, if no security in any greater
amount can be required ?

The only principle which will sustain the objection to the
power of the council to require a bond in such cases proceeds
to the extent of denying its authority to create an obligation^
or require the execution of a contract, by ordinance which
may impose a liability in excess of the amount which may
be exacted as a punishment for the violation of such ordinance.
But if there is a sufficient consideration for the obligation or
contract, as there is in cases of this character, I am unable to
perceive any reason why the extent of liability upon it should
be affected in any manner by the provisions in relation to
punishment for violations of the ordinance creating the obli-
gation or requiring the execution of the contract Punish-
ment for a violation of a city ordinance under the charter
cannot exceed three hundred dollars and ninety days' im-
prisonment. The amount to be paid for license to keep a
" bar-room" or ** drinking-shop" must be established by or-
dinance. If the ordinance requires a greater sum to be paid
for license than could be exacted as punishment, if a person
should proceed to engage in such business without obtaining-
license, would it therefore be void ? Has the amount of such
punishment any relation to the amount which may be re-
quired for the license? The bond required as a measure of
regulation or restraint stands on the same footing as the
license fee in this respect. If the council has the power under
the charter to require the bond as a proper measure of regu-
lation or restraint, then the only limitation upon its amount
or conditions is that ot reasonableness, and the provisions as
to the amount of punishment which may be imposed for a
violation of the ordinance exacting it can have no bearing.
There is no essential connection or correspondence between
the legal obligation of an ordinance and the penalty for its
violation. If the latter is insufficient, the ordinance may be
ineffectual, but is not therefore invalid. In the case at bar^
the requirement of the bond is part of the obligation of the
ordinance, and quite distinct from the penalty provided for
its violation. State v. Whitener, 23 Ind. 124; Whalin v. City



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In re Schneider. 555

of Macomb, y(> 111. 49. I think the power of the council to
require a bond from the applicant should be sustained.

4. It is claimed that the provision in the form of bond
given in section 5 of the ordinance for the observance of " all
other ordinances of said city" is illegal, and renders subjwjt of or.
the entire ordinance void. The claim is put upon SSeeS. *^"*
a literal construction of the provision. If this were the proper
construction, I should not deny the effect contended for. A
requirement to observe all other ordinances of the city would
be unequal, oppressive, and void ; and as the bond required
by the ordinance in this instance is an essential part of the
consideration for granting the license — as much so as the
license fee itself — the manifest intention of its framers would
be violated by permitting the license to issue on any other or
different terms. An ordinance thus void in part is wholly
void. The good part is incapable of separation from the bad.
Austin V, Murray, 16 Pick. 121 ; Warren v. Mayor, etc., of
Charlestown, 2 Gray, 84. But the rule of construction with
reference to the subject of the ordinance before considered
applies, here with equal force. The subject before the council
being the licensing of bar-rooms and drinking-shops, as the
title as well as the body of the ordinance abundantly shows,
the expression " all other ordinances of said city*' must be held
to mean all other ordinances on that subject, and therefore
not invalidating the ordinance. State v. McGarry, 21 Wis.
502.

5. The validity of the ordinance is also assailed on the
ground that its requirements as to the qualifications of sure-
ties are unreasonable and oppressive. Under the ordikakcbs
power to restrain, it has been held that a license ^Ljffc'SS?
fee may be exacted. Smith v. City df Madison, 7 o'«™™»-
Ind. 86. And if a fee may be required under this power, why
not a bond with sureties possessing certain prescribed quali-
fications ? The word " restrain,** appearing as it does in im-
mediate association with the word " regulate" in the charter,
must be accorded some additional effect. And even if the
requirements as to qualifications of sureties could not be con-
sidered as justified by the power to regulate, it is by no means
so clear that they cannot be sustained under the power to
restrain. Judgment affirmed.

Waldo, J., dissenting ; Lord, J., concurring.



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SS6 CITY OF TIFFIN V. SHAWHAN,



City of Tiffin

V.

Shawhan.

(Advance Case, Ohio. April 28, 1885.)

A court of equity will not specifically enforce a contract to purchase land
where the title which the purchaser would acquire would be doubtful and
unmarketable.

The mode in which at common law corporations execute deeds is by
affixing thereto their corporate seal.

By § 1745, Rev. Stat, of Ohio, the Mayor is entrusted with the custody
and use of the corporate seal ; this being so, and the proper mode of exe-
cuting a deed of land owned by the corporation being by affixing the seal
of the corporation, quaere, can the corporation empower the city clerk to
make a valid deed of corporate real property ?

Error to district court, Seneca county.

On the third day of July, 1873, Rezin W. Shawhan, defend-
ant in error, duly conveyed to the city of TiflBn, for city park
purposes, about six acres of land for the considerajtion of
$2680, which was then paid him. On the same day, Shawhan
agreed in writing with the city that he would, at any time
within two years from the first day of July, 1873, upon receiv-
ing a reconveyance of the same land, repay to the city the
sum of $2680, with interest at 8 per cent per annum from the
first day of July, 1873; and that the right to reconvey the
lands to Shawhan and receive repayment therefor from him
should be at the option of the city during the term of two
years. On the thirty-first of May, 1875, the council of the
city of TiflBn adopted a resolution that the lands so conveyed
to the city by Shawhan be reconveyed to him by the city.
Shawhan was promptly notified of the action of the council.
The reconveyance of the land to Shawhan within the period
limited by the agreement of July 3, 1873, was mutually waived
by the parties. On the nineteenth day of July, 1875, the city
council duly passed an ordinance providing for the reconvey-
ance to the respective grantors of three tracts of land, includ-
ing that conveyed to the city by Shawhan. By this ordinance
it was ordained : " . . . Sec. 3. That the city of Tiffin does
hereby bargain and sell to Rezin W. Shawhan the lands and
tenements described as follows: [Description.] Sec. 4. That



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CITY OF TIFFIN V. SHAWHAN. 557

the city clerk of said city is hereby authorized and directed
to make» execute, and deliver to each of the persons named in
sections one, two, and three of this ordinance a proper deed
of conveyance, under the corporate seal of said city,*for the
lands so by them severally purchased from said city." On
the twenty-second day of April, 1876, Sylvester J. Kintz, city
clerk of TiflSn, executed a writing of the tenor following:

" Know all men by these presents ; That, whereas, the city
council of the city of Tiffin, in the county of Seneca, and State
of Ohio, on the nineteenth day of July, a.d. 1875, duly passed
an ordinance of said city, entitled * An ordinance to authorize
the conveyance of certain lands therein described,' whereby
said city council bargained and sold the lands and tenements
hereinafter described to Rezin W. Shawhan for the sum of
two thousand six hundred and eighty dollars to said city, then
paid by said Rezin W. Shawhan.

** And whereas, by said ordinance of said city, the city clerk
of said city was authorized and directed to make, execute, and
deliver to said Rezin W. Shawhan a proper deed of convey-
ance of said lands :

" Now, therefore, I, Sylvester J. Kintz, city clerk of the city
of TiflSn, by virtue of the powers in me vested by said ordi-
nance, and in pursuance thereof, do hereby give, grant, bar-
gain, sell, and convey unto the said Rezin W. Shawhan, his
heirs and assigns forever, the lands and tenements described
as follows, to wit : [Description.] To have and to hold the
same, to him, the said Rezin W. Shawhan, his heirs and assigns,
forever.

** In witness whereof, I have hereunto set my hand and seal,
and the corporate seal of said city of TiflSn, this twenty-second
day of April, 1876. Sylvester J. Kintz,

« City Clerk, City of TiflSn. [SealJ
[City clerk's seal.]

" Executed in the pY-esence of
"John McCauley,
" S. Dahm.

" The State of Ohio, Seneca County — ss.:

" Before me, John McCauley, a notary public, within and
for said county, personally came Sylvester J. Kintz, and ac-



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558 CITY OF TIFFIN V SHAWHAN.

knowledged the signing and sealing of the above conveyance
to be his free act and deed.

" Witness my hand and notarial seal this twenty-second day
of April, 1876. " John McCauley,

[Seal.] " Notary Public, Seneca Co., O."

This instrument was promptly tendered to Sbawhan, of
whom the repayment of the money agreed upon was de-
manded. Acceptance and payment were refused. Thereupon
the city commenced her' action in the court of common pleas
of Seneca county, to enforce specific performance of the agree-
ment of July 3d, for the reconveyance of, and repayment for,
the lands in question. The petition, among other averments,
alleges " that the plaintiff tendered to the defendant a recon-
veyance of said lands, and demanded repayment of said sum
of money ;" and further avers " that a deed for the said lands
and tenements, above mentioned and described, from the said
plaintiff to the said defendant, is herewith filed and tendered



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 57 of 73)