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a further rule which must meet with general, unanimous in holding that the act was unconapproval:

stitutional, so far as it sought to confer ex"As a subject-matter which is general can

clusive jurisdiction, and Judge Davis differed and must be legislated upon by general laws from the other members of the court only in having a uniform operation throughout the holding that the act would be valid as constate, it follows from the above rules, when ferring concurrent jurisdiction. carried to their full extent, that every subject A rather recent decision of this court is matter, which can reasonably be covered and State ex rel. Dalton. v. Ritchie, 97 Ohio St. provided for by a general law, can have no 41, 119 N. E. 124. The Legislature had, by special or local legislation as to it, or any of special act, created a court of domestic relaits parts.”

tions for Lucas county and had conferred Those cases relate to matters other than jurisdiction upon it to the exclusion of the the jurisdiction of courts and lay down the jurisdiction conferred upon the common broad principles which should apply to sec- pleas court by the general laws of the state. tion 26, art. 2. There are, however, some This court, by unanimous concurrence, held cases decided by this court in which the ju- that it was a local court and that the law risdiction of the court of common pleas was which established it was not required to directly involved.

have uniform operation throughout the state, The earliest case we desire to refer to is but further held in the third syllabus: Kelley v. State, 6 Ohio St. 269. The Legis

“All laws or parts of laws relating to the lature had påssed an act on April 9, 1856, “to jurisdiction of the common pleas court are restore to the court of common pleas the laws of a general nature, and must have anljurisdiction of minor offenses in certain coun- form operation throughout the state." ties of the state.” Muskingum county was included among those to which such juris In the fifth syllabus the court agreed with diction was restored. A conviction of as- the views of Judge Davis expressed in Meyer sault and battery having been obtained, the v. Dempsey, supra, that the law would be jurisdiction was questioned. The syllabus valid as conferring concurrent jurisdiction, 'states and decides the proposition:

but would be unconstitutional as conferring

exclusive jurisdiction. "The act of the general assembly of April 9, 1856, 'to restore to the court of common pleas

These cases are valuable to the instant case the jurisdiction of minor offenses in certain in correctly interpreting the language of seccounties of the state,' being general in its na- tion 155826. It is well settled that, where ture, and yet limited in express terms to a part a statute is open to two constructions, the of the counties of the state, is in conflict with court should give that interpretation which the twenty-sixth section of the second article will not make it violative of constitutional of the Constitution, which requires that 'all

provisions. laws of a general nature shall have a uniform operation throughout the state.'

For the foregoing reasons, and upon the

The ninth section of said act, which excepts from its op- authority cited, the court of common pleas eration certain counties therein named, and must be held to have jurisdiction to review limits the operation of the entire act to the all judgments rendered by the municipal jurisdiction of the common pleas in certain courts of Cincinnati. counties only, to wit, those not excepted from [4] Upon the second branch of the case the its operation, is so essentially connected with question relates to the liability of a landlord the subject-matter and manifest legislative in for the negligence of tenants resulting in tent of the entire act, that it cannot be sepa- damages to a pedestrian lawfully passing rated and rejected as void, leaving the balance of the act to stand with a uniform operation in along the sidewalk. That portion of the conformity with the Constitution."

opinion of the judge of the court of common

pleas quoted in the foregoing statement sufThe next case we shall notice is Meyer v. ficiently states the facts. Upon these facts Dempsey, 62 Ohio St. 637, 58 N. E. 1100. the court is unanimously of the opinion that That case involved the constitutionality of the judgment of the court of common pleas a special act of April 25, 1898, creating an and Court of Appeals should be affirmed upon insolvency court for cities of the first grade the authority of Shindelbeck v. Moon, 32 of the first class and giving to such insol-Ohio St. 264, 30 Am. Rep. 584, and Stackvency court "original and exclusive jurisdic- house v. Close, 83 Ohio St. 339, 94 N. E. 746. tion” in certain matters where the probate Judgment affirmed. and common pleas courts already had jurisdiction under general laws. This court was DAY, ALLEN, and KINKADE, JJ., concur.

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(146 N.E.)

herein, bas no vested right in the remedy or SMITH v. DAVIDSON et al. (No. 18504.) manner of trial provided by law, even though

some may have been different at the date of (Supreme Court of Ohio. July 1, 1924.)

commission of the offense, and it is further or

dered and adjudged that the record contains a Error to Court of Appeals, Franklin County. constitutional question involving section 10 of Samuel L. Black, of Columbus, for plaintiff article 1 of the Constitution of the United in error.

States of America, and this court, having reM. E. Thrailkill, Thomas M. Sherman, and viewed said question upon its merits, and all J. F. Rogers, all of Columbus, for defendants other errors assigned by the plaintiff in error in error.

herein, does find that there is no error upon

the record in said proceedings and judgment. PER CURIAM. It is ordered and adjudged It is therefore considered by the court that that said petition in error be and the same the judgment aforesaid of the Court of Appeals hereby is dismissed, for the reason no debata of Hamilton county, Ohio, be and the same ble constitutional question is involved in said hereby is affirmed.

Judgment affirmed.
Petition in error dismissed.

MARSHALL, C. J., and JONES, MAT-
MARSHALL, C. J., and ROBINSON, THIAS, DAY, ALLEN, and CONN, JJ., con-
JONES, MATTHIAS, DAY, and ALLEN, JJ.,

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in error.

HYATT ROLLER BEARING CO. V. BLOCH

et al. (No. 18428.) SEIBERT V. SEIBERT. (No. 18631.)

(Supreme Court of Ohio. Dec. 16, 1924.) (Supreme Court of Ohio. Oct. 21, 1924.)

Error to Court of Appeals, Cuyaboga County. Error to Court of Appeals, Champaign

Treadway & Marlatt, of Cleveland, for plainCounty.

tiff in error. Benjamin E. Seibert, of Urbana, for plaintiff Calfee, Fogg & White and Sawyer, Cummings

& Strong, all of Cleveland, for defendants in McGrew & Laybourne, of Springfield, and error. Deaton, Bodey & Bodey, of Urbana, for defendant in error.

PER CURIAM. It is ordered and adjudged

by this court that the judgment of the said PER CURIAM. It is ordered and adjudged Court of Appeals be and the same is hereby that said petition in error be and the same affirmed. hereby is dismissed, for the reason no debat- Judgment affirmed. able constitutional question is involved in said cause.

MARSHALL, O. J., and ROBINSON, JONES, Petition in error dismissed.

MATTHIAS, DAY, ALLEN, and CONN, JJ.,

concur.
MARSHALL, C. J., and JONES, MAT-
THIAS, DAY, ALLEN, and CONN, JJ., con-

here

ona

the

cur,

error.

DARBY, Executor, V. TIFFANY et al.

(No. 18742.)

(Supreme Court of Ohio. Nov. 25, 1924.) CHATFIELD, Jr., V. STATE of Ohlo et al. Error to Court of Appeals, Lucas County. (No. 18642.)

Lee H. Schminck, of Toledo, for plaintiff in (Supreme Court of Ohio. Dec. 19, 1924.)

E. E. Lindsay, of New Philadelphia, and RitError to Court of Appeals, Hamilton County. ter & Schminck and Kirkbride, McCabe & Boe

sel, all of Toledo, for defendants in error. Dinsmore, Shohl & Sawyer, of Cincinnati, for plaintiff in error. Charles S. Bell, Pros. Atty., and Nelson

PER CURIAM. It is ordered and adjudged Schwab and Louis Schneider, Asst. Pros. Attys., that said petition in error be and the same all of Cincinnati, for defendants in error.

hereby is dismissed, for the reason no debat

able constitutional question is involved in said PER CURIAM. It is ordered and adjudged

Petition in error dismissed. that this court does assume jurisdiction in deciding that it is discretionary for the trial judge to allow separate trials for those jointly MARSHALL, C. J., and JONES, MAT- . indicted for the offense charged in the indict- THIAS, DAY, ALLEN and CONN, JJ., ment therein, that the same applies to the cur. remedy and manner of trial, and the defendant ROBINSON, J., took no part in the considerWilliam H. Chatfield, Jr., plaintiff in error ation or decision of the case.

cause.

CON

CITY OF FINDLAY v. PUBLIC UTILITIES MULCAHY, a Taxpayer, etc., V. CITY OF COMMISSION. (No. 18121.)

AKRON et al. (No. 18704.) (Supreme Court of Ohio. June 21, 1924.) (Supreme Court of Ohio. Dec. 9, 1924.) Error to Public Utilities Commission.

Error to Court of Appeals, Summit County. W. S. Snook, City Sol., and A. G. Fuller, both Commins, Brouse, Englebeck & McDowell, of Findlay, for plaintiff in error.

and Rockwell & Grant, all of Akron, for plainC. C. Crabbe, Atty. Gen., and John W. tiff in error. Bricker, Karl E. Burr, and Charles S. Maltby, Henry M. Hagelbarger, Director of Law, all of Columbus, for defendant in error. Smoyer, Clinedinst & Smoyer, and Mather,

Nesbitt & Willkie, all of Akron, for defendants

in error. PER CURIAM. It is ordered and adjudged by this court that the order of the said Public Utilities Commission be and the same is hereby by this court that the judgment of the said

PER CURIAM. It is ordered and adjudged affirmed, for the reason, upon the consideration Court of Appeals be and the same is hereby of the record, the court is of the opinion that affirmed, for the reason that the record in this the order of the Public Utilities Commission is

cause was ordered certified by this court under not unreasonable or unlawful. Hocking Valley a misapprehension that it involved the question Ry. Co. v. Public Utilities Commission, 92 Ohio whether, in the matter of letting public conSt. 362, 110 N. E. 952, approved and followed. tract where the provisions of a charter of a Order affirmed.

chartered city are in conflict with the statute

applicable thereto, the provisions of the char. ROBINSON, JONES, MATTHIAS, and DAY, ter supersede the provisions of the statutes. JJ., concur.

The record disclosing that no provision of the MARSHALL, C. J., and ALLEN, J., dissent. statutes pertaining to the letting of public

contract has been violated, there was no error in the judgment of the Court of Appeals, whatever reasons it may have assigned for such judgment.

Judgment affirmed. BEAZELL V. STATE of Ohio et al.

MARSHALL, C. J., and ROBINSON, (No. . 18630.)

JONES, MATTHIAS, DAY, ALLEN, and (Supreme Court of Ohio. Dec. 19, 1924.) CONN, JJ., concur. Error to Court of Appeals, Hamilton County. Pogue, Hoffheimer & Pogue and Walter M. Locke, all of Cincinnati, for plaintiff in error. VILLAGE OF DESHLER et al. v. NORTH. Charles S. Bell, Pros. Atty., and Nelson

WESTERN OHIO LIGHT CO. Schwab and Louis Schneider, Asst. Pros. Attys.,

(No. 18560.) all of Cincinnati, for defendants in error.

(Supreme Court of Ohio. July 1, 1924.) PER CURIAM. It is ordered and adjudged that this court does assume jurisdiction in de Error to Court of Appeals, Henry County. ciding that it is discretionary for the trial Fred Gribbell, of Deshler, and James Dono. judge to allow separate trials for those jointly van, Jr., of Napoleon, for plaintiffs in error. indicted for the offense charged in the indict H. P. Armstrong, of Deshler, and Frank T. ment therein, that the same applies to the Dore, of Tiffin, for defendant in error. remedy and manner of trial and the defendant George H. Beazell, plaintiff in error herein, PER CURIAM. It is ordered and adjudged has no vested right in the remedy or manner that said petition in error be and the same of trial provided by law, even though same hereby is dismissed, for the reason no debatamay have been different at the date of the com- ble constitutional question is involved in said mission of the offense, and it is further ordered and adjudged that the record contains a con Petition in error dismissed. stitutional question involving section 10 of article 1 of the Constitution of the United States MARSHALL, C. J., and ROBINSON, of America, and this court having reviewed said JONES, MATTHIAS, DAY, and ALLEN, JJ., question upon its merits, and all other errors assigned by the plaintiff in error herein, does find that there no error upon the record in said proceedings and judgment.

IRONTON & RUSSELL BRIDGE CO. v. It is therefore considered by the court that

MILLER. (No. 18603.) the judgment aforesaid of the Court of Appeals of Hamilton county, Ohio, be and the same (Supreme Court of Ohio. Oct. 21, 1924.) hereby is affirmed. Judgment affirmed.

Error to Court of Appeals, Lawrence County.

Johnson & Jones, of Ironton, for plaintiff in MARSHALL, C. J., and JONES, MAT- error. THIAS, DAY, ALLEN, and CONN, JJ., con Corn & Roberts, of Ironton, for defendant in cur.

error.

cause.

concur.

(146 N.E.) PER CURIAM. It is ordered and adjudged Crissinger, Guthery & Strelitz, of Marion, that said petition in error be and the same and Cook, McGowan, Foote, Bushnell & Burbereby is dismissed, for the reason no debata gess, of Cleveland, for defendant in error. ble constitutional question is involved in said

PER CURIAM. It is ordered and adjudged Petition in error dismissed.

that said petition in error be and the same JONES, MATTHIAS, DAY, and CONN, JJ., hereby is dismissed, for the reason no debatable

constitutional question is involved in said cause.

Petition in error dismissed.

cause.

concur.

MARSHALL, 0. J., and ROBINSON,

JONES, MATTHIAS, DAY, and ALLEN, JJ., WILLIAMS, Ex'x, et al. v. CHRISTOPHER.

concur. (No. 18615.) (Supreme Court of Ohio. Oct. 21, 1924.) Error to Court of Appeals, Franklin County, L. A. Alcott and Pugh & Pugh, all of Colum- | TOLEDO SOLDIERS' MEMORIAL ASS'N v. bus, for plaintiffs in error.

CITY OF TOLEDO. (No. 18108.)
James M. Hengst and L. W. Jones, both of
Columbus, for defendant in error.

(Supreme Court of Ohio. June 17, 1924.) PER CURIAM. It is ordered and adjudged

Error to Court of Appeals, Lucas County. that said petition in error be and the same Ralph Emery and Charles P. Carroll, both of hereby is dismissed, for the reason no debata- Toledo, for plaintiff in error. ble constitutional question is involved in said F. M. Dotson, Director of Law, and M. S. cause.

Dodd, both of Toledo, for defendant in error. Petition in error dismissed.

error.

MARSHALL, O. J., and ROBINSON, PER CURIAM. This day came the plaintiff MATTHIAS, DAY, and CONN, JJ., concur. in error, by its attorneys, and the defendant in

error, the city of Toledo, by its attorneys, and represented to the court that an amicable

settlement of the several matters in controverSTATE ex rel. BEHM v. WOLFERT et al. sy, as appears in the pleadings and record in (No. 18557.)

said cause, had been agreed upon; and where

as, in order to carry into effect and complete (Supreme Court of Ohio. July 1, 1924.) the terms of such settlement it would require

the action of the Court of Appeals of Lucas Error to Court of Appeals, Lucas County.

county, Ohio; and whereas, the said plaintiff Hackett & Lynch, of Toledo, for plaintiff in in error and said defendant in error, by their

said attorneys, request and consent that the D. J. O'Rourke and Lawton & Saalfield, all said cause be reversed and remanded to the of Toledo, for defendants in error.

said Court of Appeals for the purpose of com

pleting and carrying into effect such settlePER CURIAM. It is ordered and adjudged ment: that said petition in error be and the same It is ordered that the judgment and decree hereby is dismissed, for the reason no debat- of the Court of Appeals of Lucas county, Ohio, able constitutional question is involved in said mentioned and referred to in the petition in cause.

error in the above-entitled cause and proceedPetition in error dismissed.

ing in error, be and the same is hereby re

versed, and said cause remanded to the Court MARSHALL, C. J., and ROBINSON, of Appeals, for the purpose of further proceedJONES, MATTHIAS, DAY, and ALLEN, JJ., ings in said Court of Appeals carrying into ef

fect the terms of such settlement with such order and decree as the parties agree upon and said court may approve.

The action of this court in so reversing said IRVINE, Adm'x, V. ERIE R. CO. judgment and remanding said case is taken (No. 18479.)

solely upon the request and consent of said

parties as aforesaid, without this court passing (Supreme Court of Ohio. July 1, 1924.) upon or determining the matters complained of Error to Court of Appeals, Marion County.

in the said petition in error, or involved in the

record and proceeding herein, except as aforeJustice, Young & Mouser, of Marion, for said. plaintiff in error.

Judgment reversed by stipulation of parties.

Concur.

(315 Ill. 312)

8. Equity 153 - Allegations taken most FOWLER et al. v. MARION & PITTSBURG strongly against pleader on demurrer. COAL CO. (No. 15292.)

On demurrer, allegations of bill will be tak.

en most strongly against pleader. (Supreme Court of Illinois. Dec. 16, 1924.

Duncan, C. J., and Farmer and Dunn, JJ., Rehearing Denied with Modification

dissenting. Feb. 14, 1925.)

Error to Circuit Court, Williamson Coun. 1. Mines and minerals 62(1) -Extent of in- ty; D. T. Hartwell, Judge. terest conveyed by mining lease depends on intention of parties, to be ascertained from

Bill by William H. Fowler and others language used.

against the Marion & Pittsburg Coal ComWhether mining lease conveys interest in pany.

Decree of dismissal, and complainland, and, if so, whether it conveys a freehold ants bring error. Affirmed. or some lesser estate, depends on the inten

Walter M. Fowler, of Chicago, and Fowler tion of the parties as expressed in the language & Fowler, of Marion, for plaintiffs in erused.

ror. 2. Mines and minerals 48-Coal under soll William H. Warder and Hosea V. Ferrell,

is real estate, capable of being held in fee by both of Marion, for defendant in error. person other than owner of surface.

Coal under the soil is real estate, capable HEARD, J. Plaintiffs in error, who are of being conveyed and held by title in fee in the heirs of William T. Fowler, deceased, one person, while the right to the surface is filed in the circuit court of Williamson counin another.

ty their bill in chancery, and thereafter their 3. Mines and minerals eww 56Coal lease is amended bill in chancery, praying that the grant of interest, and not mere license. defendant in error be required to release of

A lease of the right and privilege to take record, in accordance with the provisions away coal from lessor's land is the grant of an of section 22 of chapter 94 of Cabill's Statinterest in the land, and not a mere license utes 1923, a certain instrument of writing to take the coal.

executed by Fowler in 1906 to the assign

ors of defendant in error and designated as 4. Estates em l-Estates classified; "freehold

a certain forfeited coal mining lease. Deestates;" "estates less than freehold."

fendant in error demurred to the amendEstates or interests in lands are of two ed bill. The court sustained the demurrer kinds: "Freehold estates,” consisting of any and dismissed the bill for want of equity. estate of inheritance or for life in either a corporeal or incorporeal hereditament existing This writ of error was sued out to review in or arising from real property of free tenure; that decree. and “estates less than freehold," consisting of [1] The first question to be considered here estates for years, estates at will, and estates is whether or not a freehold is involved. In at sufferance.

determining whether or not instruments of [Ed. Note. For other definitions, see Words writing like the one in uestion convey any and Phrases, First and Second Series, Free- interest in land, and, if they do, whether hold.)

or not they convey a freehold or some lesser 5. Mines and minerals Our 62(1) - Coal lease estate, we must first ascertain the intention held to convey freehold estate.

of the parties to the instruments, as that inCoal lease, conveying coal and granting tention has been expressed by them in the right to go on the land and mine for coal for language which they have used in the inunlimited time held to convey a freehold estate, struments themselves. notwithstanding provision for forfeiture on les The instrument in question, which is set see's failure to pay lessor royalties provided out in full in the amended bill of complaint, for.

provided that the party of the first part, 6. Mines and minerals a 70(6)-Bill to en- for and in consideration of $1 and other

force forfeiture of coal lease for nonpayment considerations, demised, leased, and to mine of royalties held insufficient.

let to G. H. Goodall and C. A. Gent, and Bill to enforce forfeiture of coal lease pro- their successors and assigns, all the coal viding for forfeiture on lessee's nonpayment of contained in or under 240 acres of land deroyalties, alleging merely that lessee had de- scribed in the instrument. The instrument ducted one-half of the royalty, without stating contained the following provision: amount of deductions or that notice or demand was served as provided in lease, held insuffi “The coal hereby leased to include all the cient.

coal that can be economically mined or taken

out from the above premises, together with the 7. Mines and minerals Ow70(6)-Lease not right to enter upon and into said lands, and

forfeited for ground other than that pleaded to dig, mine, and remove said coal; and the and stated in notice of forfeiture.

said parties of the first part do hereby lease Coal lease will not be forfeited on ground and grant unto the said party of the second other than that alleged in bill and stated in no- part, his successors and assigns, the right of tice of forfeiture.

way and use of and for a railroad, mine roads,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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