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(146 N.E.) Section 61484, subd. (c), defines a motor, claring that to constitute a common carrier transportation company:

there must be a dedication of property to "The term 'motor transportation company," public use of such character that the product when used in this chapter, means every corpo- and service are available to the public genration or person, their lessees, trustees, re- erally and indiscriminately, and that the car. ceivers or trustees appointed by any court rier must hold himself ready to serve the whatsoever, owning, controlling, operating or public indifferently to the limit of his capacmanaging any motor propelled vehicle notity. The authorities are equally uniform in usually operated on or over rails, used in the holding that, if a carrier is employed by one business of transportation of persons or property or both, as a common carrier for compen; contract, or for a special undertaking, he is

or a definite number of persons by a special sation, over any public highway in this state.”

only a private carrier. In the instant case it The term, “motor transportation company," is true that Guran and Myers are performing is first used in section 614—2, and if we in- services for other persons, for which they are sert the definition of the term and write it in- receiving a compensation, and it is also true to that section in the place of the term itself that they are using the improved highways it will be found that the General Assembly has of the state in and about the performance of attempted by legislative fiat to constitute the that service. Neither of these features is person or company who may do the things conclusive of the question. The entire service therein referred to a common carrier. In this rendered by them is pursuant to a private controversy this court is required to deter- contract, in which no one else is interested, mine the limitations upon the power and au- and no benefit or disadvantage accrues to thority of the General Assembly to declare any other person by reason of the rendition certain persons and firms to be common car- of that service, except that Hissem might riers, when the business conducted by them possibly enjoy a larger patronage if the is such as not to bring them within the com- injunction against Guran and Myers should mon-law definition of common carriers. By become effective. It does not conclusively section 614–2 it is declared that any trans- follow that this would happen, because each portation for hire of persons or property in of the producers might transport his own inmotor-propelled vehicles over the streets and dividual product to the market in his own highways of the state constitutes the opera- vehicle. The use of the highways by Guran tors of the vehicles common carriers. If and Myers is not conclusive of the question, common carriers, they are of course subject because it cannot be said that traversing to regulation both as to the rates to be the highways by a single truck, serving a charged and the service to be rendered. They large number of patrons, is more destructive are subject also to taxes and charges, and to the highways than the transportation of involved in expenses which do not have to be the same product to the same market by the met by persons and firms not subject to pub- use of a large number of vehicles of individlic regulation. If they are common carriers ual owners. There does not therefore, upon their vehicles and other property are devot- principle, appear to be any sound basis for ed to public use, and they cannot complain the exercise of public regulation of motor of public regulation, with the taxes, charges, vehicles not dedicated to public use. expenses, and other inconveniences incident This question is not a new one, but, on the thereto. If their business has not in fact contrary has been met by many courts. The been dedicated to public use and service, any Supreme Court of California, in Allen v. regulation would amount to a taking of pri- Railroad Comm., 179 Cal. 68, 175 P. 466, 8 A. vate property for public use, and therefore L. R. 249, in a very clear opinion, denies the be beyond the power of the state, unless just right of the Legislature to constitute a pricompensation were first paid in money. vate carrier a public and common carrier As to what constitutes a

car- by legislative fiat, as being in contravention rier, there can be no real controversy. It has of section 10, art. 1, and of the Fourteenth been determined by numerous decisions of Amendment, of the federal Constitution. this court and the United States Supreme Aside from the logic of the opinion in that Court, and, for that matter, by the courts in case, it becomes a very cogent authority by practically every state in the Union. Samms reason of an application having been made v. Stewart & McKibben, 20 Ohio, 70, 55 Am. to the Supreme Court of the United States Dec. 445; United States Express Co. v. Back- for a writ of certiorari, which writ was deman, 28 Ohio St. 144; Ohio Mining Co. v. nied. Railroad Comm. v. Allen, 249 U. S. Public Utilities Commission, 106 Ohio St. 601, 39 S. Ct. 259, 63 L. Ed. 797. Since the 138, 140 N. E. 143; Korner v. Cosgrove, 108 denial of the writ in that case, the Supreme Ohio St. 484, 141 N. E. 267, 31 A. L. R. 1193; Court of the United States has squarely met Southern Ohio Power Co. v. Public Utilities this question, and has decided against the Commission, 110 Ohio St. 246, 143 N. E. 700. authority of a state Legislature to convert a

The declarations of the foregoing cases private carrier into a public utility by mere are in perfect harmony with all other deci- legislative fiat. Producers' Transportation sions throughout the states of the Union, and Co. v. Railroad Comm. of California, 251 of the United States Supreme Court, in de U. S. 228, 230, 231, 40 S. Ct. 131, 64 L. Ed.

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239; Wolff Packing Co. v. Court of Indus-will be made to apply only to motor-vehicle trial Relations, 262 U. S. 522, 536, 43 S. Ct. transportation which comes within the pur630, 67 L. Ed. 1103, 27 A. L. R. 1280; Mich- view of the common-law definition of comigan Public Utilities Comm. v. Duke, 45 S. mon carriers. Ct. 191, 69 L. Ed. not yet [officially) re [3] This case cannot be disposed of withported, decided by the Supreme Court of the out some reference to the following provi. United States January 12, 1925. The Mich- sions of section 614-88, General Code: igan statute construed in that case is quite

"Except as provided in section 61484, no similar to section 614–2, General Code, and corporation or person, their lessees, trustees, its pertinent provisions are as follows: receivers or trustees appointed by any court "Any and all persons

whatsoever, shall operate any automobile, jit

engaged in the transportation of persons or

ney, bus, truck, stage, auto stage, or rent for property for hire by motor vehicle, upon or property or both, for compensation, over any

hire car, for the transportation of persons or over the public highways of this state shall be common carriers, and, so far as ap between fixed termini or over a regular or

public street, road or highway in this state plicable, all laws of this state now in force or irregular route, over which any motor transhereafter enacted, regulating . *

transportation * by other common carriers, tificate of convenience and necessity issued by

portation company is operating under a cerincluding regulation of rates, shall apply with the commission as provided in this act, until equal force and effect to such common car

such corporation or person, their lessees, trusriers by motor vehicles.

tees, receivers or trustees appointed by any Pub. Acts 1923 (Mich.) No. 209, $ 3.

court whatsoever, shall have secured a cer

tificate of public convenience and necessity or The business of Duke, which the Commis- permission from the commission to so operate, sion sought to regulate in that case, was that and then only in strict accordance with such of hauling motor trucks and trailers over rules as the commission may prescribe for such the public highways of Michigan from Detroit

operation." to Toledo. He had no other business, and

That section performs a very useful funcdid not hold himself out as a carrier for the tion, an is quite necessary to be employed public. He had three contracts with three in giving complete protection to motor transmanufacturers of automobile bodies in De- portation companies which have been fur. troit to transport their product to an auto- nished certificates of convenience and necesmobile manufacturer in Toledo. It was held sity against the aggressions of other motor by the Supreme Court of the United States transportation companies which are in fact that the provisions of the act above quoted common carriers, and that section should could not be enforced against him. Duke be employed by the courts in a proper case. was further declared to be a private car. The courts may not, however, employ the rier, having no power of eminent domain, ex- provisions of that section as an instrument ercising no franchise under the state, and of oppression against a private carrier, even possessing no greater right to use the high- though the business operated by the private ways than any other member of the public. carrier might prove to be ruinous to a pub

[2] For the foregoing reasons, and upon the lic carrier operating over the same routes foregoing authorities, any interpretation of and between the same termini, even though section 614-2 which would give state agen- he has made full compliance with all the recies any authority to regulate motor-propel- quirements of the act, and even though be led vehicles employed only in private service may have been subject to all of the charges, would constitute a violation of section 10, taxes, and expenses incident to regulation art. 1, and of the Fourteenth Amendment, of at the hands of the Public Utilities Commisthe federal Constitution.

sion. The judgment of the Court of Appeals Section 614--2, being a part of a general and of the common pleas will therefore be scheme of legislation to regulate motor-ve-affirmed. hicle transportation, and essential to the Judgment affirmed. other provisions of the Freeman-Collister Act, this controversy can be disposed of by JONES, MATTHIAS, DAY, ALLEN, KINan interpretation of that section whereby it KADE, and ROBINSON, JJ., concur.

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(146 N.E.) KATZ V, AMERICAN FINANCE CO.

er, to wit, A. R. Zimmer, and at the time the (No. 18590.)

note and mortgage were purchased by the

finance company the car appears to have (Supreme Court of Ohio, March 3, 1925.)

been in the actual possession of Bender, al

though afterwards turned over to Cooper of (Syllabus by the Court.)

the Columbus Haynes Company for the pur1, Jury Om 14(4)–Foreclosure of chattel mort. pose of demonstration. gage is equitable proceeding in which parties On the date of May 3d, this particular not entitled to jury trial.

car, which had been delivered to the possesA foreclosure of a chattel mortgage is an sion of the Columbus Haynes Motor Comequitable proceeding and one in which parties pany by Bender, was demonstrated to the are not entitled to a trial by jury.

plaintiff in error, Leo Katz, and, as a result 2. Appeal and error 1010(1)-Finding on

thereof, the Columbus Haynes Motor Comfact issues supported by competent evidence pany sold the car to Katz at a consideration not disturbed.

of $2,700, and an allowance of $1,200 on an When the sole issue presented by a record old car which Katz owned, the difference, is one of fact, and there is competent evidence $1,500, being paid in cash by Katz to the to support the findings of the lower courts, this Columbus Haynes Motor Car Company. court, not determining the weight of the evi- Katz delivered his old car and took the new dence, will not disturb such findings.

Haynes sport model under the sale. A bill

of sale dated May 5, 1923, was executed to Error to Court of Appeals, Franklin Katz, but it does not appear to have been County.

placed on record until 45 days later. The Action by the American Finance Company Columbus Haynes Motor Company went into against Leo Katz and others. Judgment for the hands of receivers, and the American plaintiff was affirmed by Court of Appeals Finance Company, on July 31, 1923, began on appeal of defendant named, and the lat- an action upon the promissory note of Benter brings error. Affirmed.—[By Editorial der and Zimmer, which it had purchased Staff.]

from the Columbus Haynes Motor Company.

As a second cause of action it asked for a This case comes into this court upon pro- foreclosure of the chattel mortgage, averring ceedings in error from the Court of Appeals that the defendant, Katz, was in possession of Franklin county. The facts incident to of the automobile and that he refused to the transaction out of which the controversy surrender the same to Bender, as the owner, grows may be stated as follows:

or to the plaintiff, as mortgagee. Katz was Prior to the 28th day of April, 1923, the made a party to the proceeding and the Columbus Haynes Motor Sales Company was court was asked to require Katz to surrenthe owner of a certain Haynes automobile, der the automobile in question, a sale was sport model Haynes motor car 77, motor prayed for, and it was asked that the pronumber 76958. On that day the company ceeds be applied to the payment of plaintiff's claims to have sold the automobile to one L.

claim. E. Bender, and to have received as part con

The answer of the defendant, Katz, put in sideration therefor a promissory note for issue the good faith of the purchase of the $2,022.84, to secure the payment of which note and mortgage by the finance company, Bender executed a chattel mortgage upon the to which answer the plaintiff filed a reply, machine, which was filed for record on May and upon the issues thus joined a trial was 3, 1923, in the recorder's office of Franklin had in the court of common pleas, resulting county. Upon the same date, May 3, 1923, in a decree of foreclosure in favor of the the Columbus Haynes Motor Sales Company | American Finance Company. issued for delivery to the defendant, L. E. The matter was taken to the Court of Ap Bender, a bill of sale on said automobile, peals upon appeal, where a hearing was had which was also duly entered of record, ac- and the same decree entered in behalf of the cording to law, on May 4, 1923. On the 28th American Finance Company that was day of April, the Columbus Haynes Motor tered in the court of common pleas. Error Company offered the note and mortgage in is now prosecuted to, this court to reverse question to the American Finance Company that decree. of Dayton, Ohio, a concern which was in the

Harry Kohn, of Columbus, for plaintiff in business of loaning money on automobiles. A representative of the finance company in

Robert J. Beatty, of Columbus, for defendrestigating the parties and the property in

ant in error. question found that no bill of sale had been given by the Columbus Haynes Motor Com- DAY, J. The paramount question in this pany to Bender, which, as above related, was case is the good faith of the American accordingly done on May 3, 1923. It also, | Finance Company in acquiring the note and before purchasing the note and mortgage, mortgage signed, executed and delivered by required the signature of an additional mak- Bender to the Columbus Haynes Motor Car

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

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Company. Both courts below, upon full the finance company was an innocent pur.
hearing, found that the American Finance chaser before maturity for value. The rec-
Company was the holder of the note and ord so showing, we cannot disturb that find-
mortgage in good faith, for value, before ma- ing.
turity, and that it was an innocent purchas. (1) As to the question of the right of trial
er in the premises.

by jury, urged by the plaintiff in error, this,
This issue of fraud and bad faith upon thé in the courts below, was an action for judg.
part of the finance company was the chief ment on a promissory note and foreclosure
issue litigated in the courts below, and in- of a chattel mortgage. The plaintiff in er-
volves a question of fact; so that, so far as ror, Katz, was only interested in the foreclo-
this court is concerned, the question is sim- sure feature. That being purely an equita-
ply this: Is the finding of the courts below ble action, we cannot find that he was de.
that the American Finance Company was an prived of any right by being denied a trial
innocent purchaser, before maturity, for val- by jury.
ue, sustained by some evidence in the rec- The rule being that this court is not to
ord?

pass upon the weight of the evidence and is The record shows the note and mortgage only permitted to ascertain from the record were dated April 28, 1923, that the delivery whether there is some competent evidence of the car was made to Bender on May 3d, therein to sustain the findings of the court which was the date of the bill of sale. below, we are constrained to the conclusion When the agent of the plaintiff finance com- that such evidence does exist and that it is pany came to inspect the property he was our duty to affirm the judgment of the Court shown the bill of sale and found the ma- of Appeals rendered herein, which we acchine in the actual possession of Bender. cordingly do. The bill of sale was recorded on May 4th, Judgment affirmed. within the time prescribed by law. The mortgage and its assignment were filed by

MARSHALL, C. J., and JONES, MATthe finance company with the county record- THIAS, ALLEN, KINKADE, and ROBINer of Franklin county on May 3, 1924. The SON, JJ., concur. fact is that this chattel mortgage could have been known by Katz by an examination of the record. The bill of sale to Katz, while dated May 5th, was not recorded by him until 45 days later. While sales were made of BOARD OF EDUCATION OF PUTNAM like character by the Columbus Haynes Com

COUNTY et al. v. BOARD OF EDUCATION

OF HARTSBURG pany to other employés, and numerous other

RURAL SPECIAL

SCHOOL DIST. OF PUTNAM COUNTY. evidences of fraud upon the part of the Col

(No. 18900.) umbus Haynes Company are shown in the record, the record also discloses some evi- (Supreme Court of Ohio. March 3, 1925.) dence substantiating the finding of the courts

(Syllabus by Editorial Staff.) below that the fraud, in so far as the Bender car was concerned, was not known to 1. Schools and school districts 37(3)-Elec. the finance company.

tors signing remonstrance against creation of

new school district cannot withdraw names [2] We must take this record as we find

after expiration of 30-day period. it. Had the witnesses appeared in this court,

Electors signing names to remonstrance and had testimony been taken from the lips against creation of new school district estabof the witnesses, as was the privilege of the lished under Gen. Code, & 4736, which is filed Court of Appeals and the court of common with county board of education before end of pleas, and were we to weigh such evidence, 30-day period, cannot withdraw names therewhat this court's conclusion would have from after period has elapsed, though official acbeen is not for us to conjecture,

tion has not been taken on remonstrance by If from the record it appears there was

county board. no evidence to sustain the finding of the 2. Statutes em 230—Legislative intent to change courts below, this court has the power to set presumed where statute repealed and differ. the same aside, but, not undertaking to ent statute enacted. weigh the evidence and pass upon its suffi- When existing statute is repealed and new ciency, we cannot disturb the decree of the and different statute on same subject is enactcourts below unless there is no evidence to ed, it is presumed the Legislature intended to sustain their finding. While both courts be- change effect and operation of law to extent of low found that the Columbus Haynes Motor change in language thereof. Company acted in bad faith, and was guilty of fraud, we cannot say that the conclusions

Certified by Court of Appeals of Putnam reached below are not sustained by some evi

County. dence in the premises, to wit, that the pro- Action by the County Board of Education ceedings were regular on their face, and that I of Putnam County and others against the

For other cases see same topic an] KEY-NUMBER in all Key-Numbered Digesta and Indexen

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(146 N.E.) Board of Education of Hartsburg Rural Spe- 1 county board of education, under section 4736 cial School District of Putnam County. of the General Code, which remonstrance is Judgment for plaintiffs was affirmed on ap- filed with the county board of education bepeal by the Court of Appeals, and case was fore the end of the 30-day period, may withcertified to Supreme Court. Affirmed.--[By draw their names from the remonstrance aftEditorial Staff.]

er the 30-day period has elapsed, but before On May 6, 1924, the county board of educa- official action was taken upon the remontion of Putnam county, under authority of strance by the county board of education ? section 4736, General Code, adopted a resolu

The plaintiff in error claims that electors tion, by the terms of which it created a

who have signed such a remonstrance may school district embracing the Hartsburg rural lawfully withdraw their names therefrom at special school district, the Monroe Township any time before the county board has taken school district, and what was formerly the official action thereon, even though the 30Continental Village school district, all in Put

day period has expired.

The defendant in error claims that such nam county, Ohio, and designated five of the defendants below to act as a board of educa- withdrawals - cannot be made after the 30 tion of the proposed new district. Eleven

days have expired, upon the ground that the

filing of the remonstrance signed by more hundred and thirty-nine qualified electors were located in the territory affected by the than a majority of all the electors within resolution and order of the county board.

the territory affected automatically renders Within 30 days from and after May 6, ineffectual the action of the county board 1924, a remonstrance containing 651 names

purporting to create the new school district. was filed with the county board of education. tion 4736, General Code (108 O. L., pt. 1, p.

In so far as pertinent to this discussion, secAfter May 6, 1924, and before the county board of education took action upon the re

707), reads: monstrance, a petition containing 161 names

"The county board of education may create a of the same persons who had signed the re-school district from one or more school districts monstrance was filed with the county board or parts thereof, and in so doing shall make an of education, withdrawing their names from between the newly created district and any dis

equitable division of the funds or indebtedness the remonstrance.

tricts from which any portion of such newly On June 18, 1924, the county board of edu- created district is taken. Such action of the cation met to consider the remonstrance and county board of education shall not take effect found that it contained the names of less if a majority of the qualified electors residing than a majority of the qualified electors of in the territory affected by such order shall the territory affected, and the board of edu- within thirty days from the time such action is cation of the newly created district, which taken file with the county board of education

a written remonstrance against it."
was appointed by the county board of educa-
tion, took charge of the affairs of the newly

The plaintiff in error cites certain Ohio
created district and began exercising author-
ity and jurisdiction over the school affairs cases, to the effect that persons who have

subscribed to petitions may withdraw their therein. This action was brought in the court of names at any time before official action tak

en thereon, and urges that these decisions common pleas of Putnam county, Ohio, to necessitate judgment in' his favor. Hays v. enjoin the newly appointed board from ad. Jones, 27 Ohio St. 218; Dutten v. Village ministering the school affairs of the newly of Hanover, 42 Ohio St. 215; State ex rel. created district. Upon hearing, a permanent Kahle, v. Rupert, Aud., 99 Ohio St. 17, 122 injunction was granted.

N. E. 39.
An appeal was taken to the Court of Ap-

We have read and carefully considered peals, which court also rendered judgment these decisions, but think that they do not for the plaintiffs and certified the case to

apply in the instant case. There is a disthis court as being in conflict with the deci- tinction between the filing of a petition and sion of the Court of Appeals of Ashland the filing of a remonstrance, under section county, Ohio, in the case of Montgomery 4736, General Code. It is true, as contended Township Board of Education v. Board of

by plaintiff in error, that the petition, like Education, 8 Ohio App. 120, 29 0. C. A. 198. the remonstrance, is a means provided for

Knepper & Wilcox, of Cleveland, and Her- electors to express their will. But in other bert Eastman, of Toledo, for plaintiffs in er- essential respects there is a marked differ

ence between the remonstrance and the petiWinn & Goller, of Defiance, and B. A. Un- tion. In cases such as those cited above the verferth, of Ottawa, for defendant in error. filing of the petition merely invokes the ju

risdiction of the board or tribunal, and therePER CURIAM. [1] One legal question fore the withdrawal of the names by the eleconly is involved in this case, which is wheth- tors who originally signed them to the petier qualified electors who have signed their tion is permissible until the time that official dames to a remonstrance against the crea- action is taken upon the petition. The election of a new school district established by a tors, having a rigbt to invoke the jurisdic

TION CIAL

ror.

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