Rowland v. Railway.

APPEALS CONSTITUTIONAL LAW-RAILROADS.

[Harrison (7th) Circuit Court, 1910.]

Laubie and Metcalfe, JJ.

(Cook, J., not sitting.)

B. F. ROWLAND V. BALTIMORE & O. RY.

STATUTE TAXING ATTORNEY FEES ON APPEAL IN FIRE DAMAGE CASES AGAINST RAILROADS IS UNCONSTITUTIONAL.

Gen. Code 8973 (R. S. 3365-7) which provides for the taxing of an attorney fee where an appeal is taken in certain actions for damages on account of fires caused by railroads is unconstitutional and void.

[Syllabus by the court.]

ERROR to Harrison common pleas court.

Perry & Rowland, for plaintiff in error.

J. M. Lessick and Hollingsworth & Worley, for defendant in error:

Cited and commented upon the following authorities: Baltimore & Ohio Ry. v. Kreager, 61 Ohio St. 312 [56 N. E. Rep. 203]; Hocking Val. Coal Co. v. Rosser, 53 Ohio St. 12 [41 N. E. Rep. 263; 29 L. R. A. 386; 53 Am. St. Rep. 622].

METCALFE, J.

The plaintiff in error brought this action originally before a justice of the peace to recover for damages to his property caused by fire originating in the railroad company's right of way. The case was tried before the justice and appealed to the common pleas court, where a verdict and judgment was rendered in favor of the plaintiff. The plaintiff thereupon moved the court to include in the judgment an attorney fee which the court refused to do, and such refusal is the only ground of error assigned here.

The plaintiff claims the right to an attorney fee to be taxed against the defendant under favor of act 91 O. L. 187, Gen. Code 8973 (R. S. 3365-7), and the defendant resisted on the

Harrison County.

ground that the statute which permits it is unconstitutional. The section reads as follows:

"In case either party appeals from the judgment of a court in which an action under the three next preceding sections is begun, or carries the case up on error, the party in whose favor judgment finally is rendered shall have included in his bill of costs against the adverse party, an attorney fee of fifty dollars, if it is not carried beyond the circuit court. But if carried to the Supreme Court of Ohio an attorney fee of one hundred dollars shall be included in his bill of costs."

In the case of Hocking Val. Coal. Co. v. Rosser, 53 Ohio St. 12, 15 [41 N. E. Rep. 263; 29 L. R. A. 386; 53 Am. St. Rep. 622], original R. S. 6563a, which authorized the taxing of an attorney fee in favor of the plaintiff in suits on certain claims for labor, was held unconstitutional on the ground that it was class legislation. But it is urged that this holding does not apply to Gen. Code 8973 (R. S. 3365-7), inasmuch as the latter section permits an attorney fee to be taxed in favor of the winning party, whether plaintiff or defendant, and against the loser. In our judgment the provision making the fee assessable against the loser does not relieve the statute from its objectionable features. It is still class legislation. Those who are so unfortunate as to have litigation over fires caused, or claimed to be caused by railroads, are singled out as a class by themselves and the one who wins is granted a favor which is denied to all other litigants, and the loser has inflicted upon him an added burden of costs which is not imposed upon any others. In Hocking Val. Coal Co. v. Rosser, supra, it was not the fact that one of the parties only was given the right to have. his attorney fee charged against his adversary that made the statute unconstitutional. It was the fact that a class of litigants was separated from all others and favors granted or burdens imposed which other litigants were not obliged to bear. "All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law." Art. 1, Sec. 16 Const. of Ohio. "No state shall * deny to any person within its jurisdiction

Rowland v. Railway.

the equal protection of the laws." Fourteenth amendment U. S. Const. Every person has an equal right with every other person to invoke the action of the courts of the state for the protection of his person or property and it is not "due course of law" or "equal protection of the laws" where those who have property destroyed by fire caused by a railroad are put in a class by themselves and are offered a reward in the shape of an attorney fee if they win their cases and are required to pay one to their adversary if they lose.

Judgment is affirmed.

Laubie, J., concurs.

BURGLARY-CRIMINAL LAW.

[Hamilton (1st) Circuit Court, April 30, 1910.]

Giffin, Smith and Swing, JJ.

JERRY BROWN V. STATE OF OHIO.

1. HEARSAY EVIDENCE AS TO LIVELIHOOD OF ACCUSED IS INCOMPETENT IN PROSECUTION FOR POSSESSION OF BURGLARS' TOOLS.

In a prosecution for having certain burglars' tools in his possession with burglarious intent, proscribed by Gen. Code 12439, hearsay or secondary evidence as to the livelihood of accused is incompetent, notwithstanding proof of his occupation as bearing upon the intent with which he was carrying the tools be competent.

2. CHARGE TO JURY IMPLYING NECESSITY OF ACCUSED'S EVIDENCE OF GOOD CHARACTER IS ERRONEOUS.

PRODUCING

The presumption is in favor of good character and reputation, and a charge to the jury which seems to imply that, if the accused did not produce evidence as to his good character and reputation, he thereby did not claim good character, is erro

neous.

[Syllabus approved by the court.]

ERROR to common pleas court.

Hamilton County.

Thomas J. Cogan, for plaintiff in error.

Arthur C. Fricke, for defendant in error.

SMITH, J.

The plaintiff in error was convicted in the court of common pleas of this county under Gen. Code 12439, for having in his possession certain implements used by burglars for breaking and entering houses, with the intention of using the same burglariously, and upon said conviction was sentenced to the penitentiary of the state.

The conviction is attacked upon the ground that hearsay or secondary evidence was admitted by the trial court on behalf of the state, to prove the calling or livelihood of plaintiff in error and his associates at the time of his arrest, to-wit, that of being a thief or burglar.

While it is competent to prove the calling or livelihood of the plaintiff in error or his associates as bearing upon the intent with which he was carrying the implements which were found in his possession, yet this livelihood or business if it may be so designated is a fact and should be proven as other facts in the case.

We do not think that the character or reputation of the associates of the accused could be placed before the jury, as disclosed by the record in this case, to establish their means of livelihood or business, by statements made by the various witnesses as to what other people had told them in regard to the calling or business of these individuals.

It was competent to show the work that the associates of the plaintiff in error had been engaged in, or that the plaintiff in error himself, as a fact in the case; but this fact could not be deduced from or proven by secondary evidence as to reputation of the parties, based upon what other persons had told the witnesses these parties were engaged in.

We are also of the opinion that the admission by the trial court of evidence pertaining to the reputation of the plaintiff in error as to his being a criminal or thief, was prejudicial,

Brown v. State.

notwithstanding that the same was later stricken from the record and withdrawn from the consideration of the jury.

Until the reputation of the accused had been put in issue by himself, it was error to have allowed it to enter into the case; and in instructing the jury to disregard the same the court said, "that so long as the defendant had not put his own character and reputation in issue before the jury by claiming to be of good character, the state was not authorized to introduce any evidence to impeach his character."

This would seem to imply, that if the plaintiff in error did not produce evidence as to his good character and good reputation he thereby did not claim to be of good character or to have a good reputation. This we think was prejudicial, for the presumption is in favor of the good character and the good reputation of the plaintiff in error and these can not be attacked until he himself has offered evidence bearing upon the same beyond the presumption of law.

Judgment will be reversed.

Giffen and Swing, JJ., concur.