Young v. State.

mitted since said, repeal of the old statute, all evidence as to alleged offenses committed before said day, should have been excluded and that the jury should have been charged that under the indictment it could only consider transactions of the accused since said day. It is immaterial that this proposition was not argued to the trial court, as is claimed. The evidence offered as to alleged shortages before April 29, 1902, was objected to and admitted over defendant's objection. Whether he gave the proper reason why it should be excluded is immaterial. He asked that it be excluded. It was his right under the authority cited to have it excluded. It was admitted over his objection and his rights were thereby ignored. Such being his rights it was also the duty of the trial judge to protect them in the charge to the jury and this was not done. Proper exceptions to the charge were taken and this we find to be the only error in the charge, prejudicial to the defendant.

Many exceptions to the admission of this incompetent testimony, too numerous to mention, are found in the bill of exceptions.

It remains, however, to point out that this vice is lurking in the socalled confessions of the accused. Not only were these alleged confessions altogether too general and lacking in particularity as to time and amount to be admissible, but as neither the court nor jury could determine whether they referred to transactions before or since April 20, 1902, they should have been excluded.

It follows that the motion for a new trial should have been granted, and for error in overruling it and for errors in the admission of evidence and the charge, as specified, the judgment of the common pleas court is reversed and the case remanded to the common pleas court for new trial.

Day and Norris, JJ., concur.

Wood County.

EXPLOSIVES-MUNICIPAL CORPORATIONS-EVIDENCE.

[Wood (6th) Circuit Court, November 28, 1903.]

Parker, Hull and Haynes, JJ.

WILLIAM W. WALTER V. BOWLING GREEN.

1. MUNICIPAL ORDINANCE PROHIBITING TRANSPORATION OF EXPLOSIVES THROUGH STREET NOT INCONSISTENT WITH LAN. R. L. 10622 (R. S. 6953).

A municipality has power under the statutes of this state, not only to regulate, but to prohibit absolutely the transportaion of nitroglycerine through its streets; and an ordinance prohibiting the same is not inconsistent with the provisions of Lan. R. L. 10622 (R. S. 6953).

2. A FINE OF $100 FOR VIOLATION OF SUCH ORDINANCE NOT UNREASONABLE. An ordinance prohibiting the storage of nitroglycerine within the corporate limits of a municipality or its transportation through the streets thereof, and imposing a fine of $100 for the first violation thereof, is not unreasonable, nor is the fine excessive.

3. HEARSAY.

Information acquired by a police officer from a third person as to the amount of nitroglycerine transported over a certain street by defendant, etc., in violation of a municipal ordinance, is inadmissible in evidence under the hearsay rule.

ERROR to Wood common pleas court.

Beverstock & Donahey, for plaintiff in error:

A municipality does not have the authority or power to absolutely prohibit the storing or transportation of nitroglycerine; their power is limited to regulating the transportation of the same, and fixing the quantities which may be transported or stored. Section 1692 Rev. Stat. (repealed 96 O. L. 96); Lan. R. L. 10622 (R. S. 6953); Hays v. St. Marys (Vil.), 55 Ohio St. 197, 198 [44 N. E. Rep. 924].

The legislature, at the time of the passage of the ordinance in question, had not conferred upon municipalities the power to impose a fine or imprisonment for the violation of Sec. 1692 Rev. Stat. (repealed 96 O. L. 96); Whitcomb v. Springfield, 2 Circ. Dec. 138 (3 R. 244); Knoxville (City) v. Railway, 83 Iowa 636 [50 N. W. Rep. 61; 32 Am. St. Rep. 321]; Nevada v. Hutchins, 59 Iowa 506 [13 N. W. Rep. 634]; State v. Bright, 38 La. Ann. 1 [58 Am. Rep. 155]; St. Paul v. Laidler, 2 Minn. 190 [72 Am. Dec. 89 and note]; 96 O. L. 21; Alliance v. Joyce, 49 Ohio St. 7 [30 N. E. Rep. 270]; Sigler v. Cleveland, 4 Dec. 166 (3 N. P. 119); Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688.

P. J. Chase, city solicitor, for defendant in error.

PARKER, J. (Orally.)

Walter v. Bowling Green.

In this case an affidavit was filed with the mayor of the city of Bowling Green, Ohio, charging the plaintiff in error, William W. Walters with violating a certain ordinance which prohibited the conveyance of nitroglycerine through the city. Various proceedings were had attack-ing the affidavits, etc., that we need not give attention to. The matter finally came to a point where the plaintiff in error entered a plea of not guilty, the evidence of certain witnesses was adduced, and he was convicted and sentenced to pay a fine of $100 and stand committed to the workhouse at Toledo until the fine and costs were paid. He prosecuted error to that judgment in the court of common pleas, the judgment was there affirmed, and he now prosecutes error to this court. He contends that the conviction is wrong, and the proceedings erroneous for various

reasons:

First, because the ordinance is invalid, it being prohibitive; his contention being that the council was without authority to pass a prohibitive ordinance upon this subject; that it only had authority to regulate; second, that the penalty is excessive and unauthorized; third, that the conviction is against the law because it is not supported by competent evidence; and fourth that the proceedings were erroneous because the court admitted certain hearsay evidence over his objection, and subsequently refused to rule it out, but considered it; that this evidence was important and its admission and rejection was prejudicial to the plaintiff in error.

We will discuss these questions in the order we have mentioned them.

Is the ordinance invalid for the reasons stated? It is pointed out to us that Lan. R. L. 10622 (R. S. 6953) provides as follows:

"It shall be unlawful for any person, firm or corporation, to manufacture the substance or material known as nitroglycerine, or any compound thereof, or to store the same in quantities exceeding one hundred pounds, within the limits of any municipal corporation, or within eighty rods of any occupied dwelling or public building, or without giving bond as hereinafter provided to pay any damages caused by the explosion of said substance. Within thirty days after the passage of this act, any and all persons, firms or corporations heretofore engaged in the manufacture or storage *, shall give bond in the sum of $5,000, with good and sufficient surety, to the county commissioners of such county with such surety or sureties as shall be approved by such county commissioners, conditioned for the payment of all damages that may be caused to persons or property by any explosion of any of said substance.

Wood County.

And it shall be unlawful for any person, firm or corporation to transport or carry said substance in any package not having written or printed upon two sides thereof, in plain and distinct letters, the words 'nitroglycerine-dangerous,' or in any vehicle or water craft upon which any passenger is, at the same time being conveyed, or in any vehicle upon the two sides and rear end of which there shall not have been printed, in plain distinct letters, large enough to occupy a space two inches wide by eighteen inches long, the words 'nitroglycerine-dangerous.' And anyone convicted of a violation of this section, either as principle or servant, agent or officer of such person, firm or corporation, shall be fined not more than $1,000, or imprisoned not more than three months, or both.'

Now it is urged that because this is not a prohibition but a regulation of the uses of nitroglycerine, its manufacture, storage, transportation, etc., an ordinance of a municipality going further, going beyond this, is obnoxious to it and in conflict with it, and therefore invalid. This argument proceeds upon the theory that since one is not prohibited by this statute from storing nitroglycerine within the limits of a municipality so long as the quantity stored does not at any time exceed a hundred pounds, that therefore the statute is permissive to that extent, and is a limitation of the authority of the municipality. We do not agree with this contention; we do not think it is intended to be so.

I shall, before closing, call attention to some remarks upon these provisions of Lan. R. L. 10622 (R. S. 6953) by our Supreme Court. But proceeding further, counsel contend that there is no express authority to municipalities to prohibit the storage in or transportation through a municipality, of any nitroglycerine, that is to say, of nitroglycerine of any quantity whatever. Counsel for the state relies upon the authority given by subdivisions three and fourteen of Sec. 1692 Rev. Stat. (repealed 96 O. L. 96.) That section contains an enumeration of the principal powers of municipalities, and among other powers the village council is given authority to provide by ordinance, "to prevent injury or annoyance from anything dangerous, offensive or unwholesome, and to cause any nuisance to be abated;" and "to regulate the transportation and keeping of gunpowder and other explosive and dangerous combustibles, and to provide for license magazines for the same." It will be observed that paragraph fourteen explicitly mentions "explosives" and that the authority given by that paragraph is not to prohibit the transportation or keeping of explosives, but to regulate the

same.

Walter v. Bowling Green.

It is conceded on behalf of the city that under that paragraph standing alone, this ordinance which is prohibitory could not be sustained, and on the part of the plaintiff in error it is contended that paragraph three is not intended to cover the subject-matter specifically covered by paragraph fourteen, and, further, that the only lawful method for the enforcement of paragraph three, is by appropriate proceedings to abate the nuisance which by that paragraph the council has a right to prevent or cause to be abated.

We are cited to the case of State v. Bright, 38 La. Ann. 1 [58 Am. Rep. 155], and St. Paul v. Laidler, 2 Minn. 190 [72 Am. Dec. 89], in support of the proposition that a municipality has only such powers as are expressly given to it by statute, or, as is said in some states, where the general statute does not constitute their charter, such powers as are expressly given to them by the terms of their charters, and there can be no question but that is the rule, and unless we can find express authority for enforcing the provisions of paragraph three of Sec. 1692 Rev. Stat. by an ordinance imposing a penalty, then these proceedings would be unauthorized, and this conviction cannot stand.

We are also cited to the case of Knoxville (City) v. Railway, 83 Iowa 636 [50 N. W. Rep. 61; 32 Am. St. Rep. 321]. In that case it was held, reading from the syllabus:

"A municipal corporation has no authority to provide by ordinance for the punishment by a fine of a person guilty of a nuisance as defined by the ordinance. The power of the city is limited to provide for the abatement of the nuisance."

It appears upon looking into the case that the authority of the municipality in the premises is found in Sec. 456 of the code of that state which reads, "they shall have power to prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated;" reading, it will be observed precisely as does this paragraph three of Sec. 1692 Rev. Stat. (repealed 96 O. L. 96), with the exception that in our statute the word "unwholesome" is used, where in the Iowa statute the word "unhealthy" is used. Now so far as appears from this report, the only authority so far as preventive measures or penalties, or method of procedure is concerned in the state of Iowa, was to be found in this paragraph of the statute which I have read, and in the course of the opinion it is said:

"Cities and incorporated towns have power to provide, by ordinance, for the abatement of nuisances, but not for the punishment, by fine, of those guilty of maintaining the nuisances."