Hamilton Common Pleas.

rights of his neighbors can be carried so far as to compel him to allow a large body of water to remain on his premises which might result in severe damage to him, in order to counter-balance the hydrostatic pressure that is exerted upon his neighbor's subsol, where that neighbor has taken no means to prevent the water coming in upon her premises.

This same principle has been laid down, under similar facts, in Lamb v. Reclamation Dist. 73 Cal. 125 [14 Pac. 625; 2 Am. St. 775]; Hoard v. Des Moines, 62 Iowa 326 [17 N. W. 527]; Turnpike Co. v. Green, 99 Ind. 205; Railroad v. Stevens, 73 Ind. 278 [38 Am. Rep. 139]; Bass v. State, 34 La. Ann. 494; Dubose v. Commissioners, 11 La. Ann. 165.

In Lamb v. Reclamation Dist. supra, the court, at page 131, referring to the principle laid down in Rex v. Commissioners, supra, say:

"Logically this principle would seem to be applicable to the waters of large navigable American rivers subject to extensive overflows, and it has been thus made applicable in a number of adjudicated cases."

Counsel for plaintiff seems to think that he has some right of action because of the provision of Sec. 3782 G. C., that if the owner of land excavates to a greater depth than nine feet below the curb of streets and causes any damage to any building upon the lots adjoining, such owner shall be liable to the party injured to the full amount of such damage.

I can not see now, and never have been able to see, the application of this statute to the facts of the present case. There is no evidence here to show that the excavation of the driveway cellar was the cause of damage complained of herein. As a matter of fact, the evidence shows that the wall which was erected next adjoining plaintiff's property is still standing and has been standing for a great number of years and is amply sufficient to furnish lateral support to the property of plaintiff. It was not the manner in which the excavation was made upon the defendant's premises, nor the depth of its cellar, that caused the damage, but it was the failure to permit the water to rise in the cellar so that the hydrostatic pressure might be equalized that was the direct cause of whatever damage plaintiff sus

Ulland v. Brewing Co.

tained, and in view of the authorities, it does not seem that this would create a liability for which compensation might be had.

Therefore, I am of the opinion that there was no error in directing a verdict for the defendant, and the motion for a new trial will be overruled.

HEALTH-MUNICIPAL CORPORATIONS-PURE FOOD

LAWS.

[Lucas Common Pleas, September 1, 1917.]

CLARA ALLION V. TOLEDO (CITY).

Bread Ordinance Prescribing One Pound Loaf as Minimum Invalid. A municipal bread ordinance "regulating the size of loaves of bread" is invalid and unenforcible in so far as it attempts to penalize the making and selling of bread in loaves weighing less than one pound avoirdupois.

ERROR to the police court of the city of Toledo.

Geo. A. Bassett, for plaintiff in error.

Cited and commented upon the authorities following: Collins v. Hatch, 18 Ohio 523 [51 Am. Dec. 465]; Bauer v. Casey, 26 O. C. C. 598 (6 N. S. 69); State, ex rel. v. Lynch, 88 Ohio St. 71, syl. 2 [102 N. E. 670]; Fitzgerald v. Cleveland, 88 Ohio St. 338, 348 bottom of page [103 N. E. 512; 1915B Ann. Cas. 106]; McQuillian on Mun. Corps. Sec. 895, et seq.; Williams & Thomas Co. v. Preslo, 84 Ohio St. 328 [95 N. E. 900]; Cox v. Pittsburgh, C. C. & St. L. Ry. 2 Dec. 594 (1 N. P. 213); Markley v. State, 31 O. C. C. 225 (12 N. S. 81); Columbus Ry. & L. Co. V. Columbus, 20 Dec. 555 (10 N. S. 161); Yeazill v. State, 10 Circ. Dec. 794 (20 R. 646); Heminger v. Cleveland, 2 Dec. Re. 428 (3 W. L. M. 46); Solomon v. State, 21 Dec. 383 (11 N. S. 525); Sipe v. Murphy, 49 Ohio St. 536 [31 N. E. 884]; City of Chicago v. Netcher, 183 Ill. 104 [55 N. E. 707; 48 L. R. A. 261; 75 Am. St. 93]; City of Buffalo v. Collins Baking Co. 57 N. Y. Supp. 347; People v. Gillson, 109 N. Y. 389 [17 N. E. 343; 4

22 Dec. Vol. 28.

Lucas Common Pleas.

Am. St. 465]; Slaughter-House Cases, 83 U. S. (16 Wall.) 87 [21 L. Ed. 412].

Charles T. Lawton, for defendant in error.

RITCHIE, J.

On the thirtieth day of July of this year there was filed in the police court of this city an affidavit, charging that on that day and in this city Clara Allion (the plaintiff in error) "did. sell to L. H. Becker one loaf of bread, which said loaf of bread did then and there weigh less than one pound avoirdupois, to wit, eleven and three-quarters (1134) ounces and no more, contrary to the form of the ordinance in such case made and provided."

After arrest had been made, and at the hearing in the police court, the defendant filed, successively, a motion to quash and a demurrer to the affidavit, in each of which the validity of the ordinance upon which the prosecution was founded was attacked. Both the motion and the demurrer were overruled by the police court, and exceptions taken. The case then proceeded to trial upon the testimony of witnesses and resulted in a judgment of conviction of the defendant, who was sentenced to pay a fine of $10 and the costs, taxed at $4.62. A motion in arrest of judgment, then filed, was overruled, a bill of exceptions was presented to and allowed by the court, and this proceeding in error is now prosecuted in this court for the purpose of reviewing the judgment of the police court.

The ordinance upon which the original prosecution in the police court was founded was passed May 28, 1917. It is entitled: "Ordinance No. 933, Regulating the size of the loaves of bread to be sold within the city of Toledo." In its different sections-six in number-it provides, in substance, that all bread made or procured for the purpose of sale, sold, offered or exposed for sale, shall be made in a clean and sanitary place, of good and wholesome flour or meal, and shall contain no deleterious substance or material; that every loaf of bread shall weight a pound avoirdupois (except as in the ordinance provided) and that such loaf shall be considered the standard loaf in

Allion v. Toledo.

the city of Toledo; that bread may be made or exposed for sale in 1, 12, 2, 22, 3, 32, 4, 42, 5, 52 or 6-pound loaves, and in no other way; that every loaf of bread shall have affixed thereon, in a conspicuous place, a label, printed of a certain size and type, giving the weight of the loaf, marked in terms of pounds, that in no instance shall the weight of the loaf be stated in ounces; that the business name and the address of the maker,` baker, or manufacturer of the loaf shall also be placed upon such label; that there shall be kept, in a conspicuous place in the bakery, bake shop or store, by the proprietor thereof, and every seller of bread, scales and weights suitable for the weighing of bread, and that the bread shall, by the seller, be weighed in the presence of the buyer whenever so requested by the latter: that for the violation of any of the provisions of the ordinance there shall be imposed a fine of not less than $10 nor more than $100 for each offense. The ordinance further provides that its provisions shall not apply to what is commonly known as stale bread, provided that at the time of the sale the seller of the bread shall expressly state to the buyer that the bread so sold is stale.

One contention of the plaintiff in error is that the ordinance is contrary to law because it contains more than one subject. Section 4226 G. C. provides: "No ordinance, resolution or bylaw shall contain more than one subject, which shall be clearly expressed in its title." Section 38 of the charter of the city of Toledo provides: "Each proposed ordinance or resolution shall be introduced in written or printed form, and shall not contain more than one subject, which shall be clearly stated in the title." As the court has already stated, the title to this ordinance reads: "Ordinance No. 933. Regulating the size of loaves of bread to be sold within the city of Toledo."

It will be noticed by what the court has already said as to the provisions of the ordinance in question here that it does provide for many matters-clean and sanitary place where bread shall be made-bread to contain no deleterious substance or material-label upon the loaf-name and address of maker-scales for weighing, weighing by seller in presence of buyer when required-and the exception as to sale of stale bread, etc.-none

Lucas Common Pleas.

of which at all pertain to the subject clearly expressed in the title to the ordinance, to wit: "Regulating the size of loaves of bread to be sold within the city of Toledo."

In the judgment of the court, there is much of force in the contention of the plaintiff in error already stated. Because, however, of the court's opinion of the ordinance, based upon another clearer and less doubtful reason, it becomes unnecessary to pass upon (and the court does not now do so) the first contention of the plaintiff in error.

The real question at issue, as presented by the record in this proceeding is: Have the bakers of Toledo the right to make, and the dealers in bread the right to sell, in Toledo, a loaf of bread weighing less than one pound if they so choose or trade and custom demands it?

If they have not, then the city council can, by ordinance, say to the grocer, "You can not, in Toledo, sell or expose for sale less than one bushel of potatoes"; to the milkman, "less than one quart of milk"; to the butcher, "less than one pound of meat"; to the merchant, "less than one yard of calico," etc. What the city council has, by this ordinance, said to the baker can it not, with equal right, say to the butcher or the candlestick maker?

What general powers do municipal corporations possess? Only such as are expressly conferred or those which are implied as being necessary to the exercise of the powers which are conferred expressly.

It is not claimed that any general power has been, by statute of the state, conferred upon the council of the city of Toledo which authorizes the ordinance in question here.

Article 18, Sec. 3, of the constitution, adopted September 3, 1912, provides:

"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits, such local police, sanitary and other similar regulations as are not in conflict with general laws."

Article I, Sec. 1 of the constitution of the state of Ohio provides: