
    PARTS OF THE BRANNOCK LAW CONSTRUED.
    [Common Pleas Court of Montgomery County.]
    In re Petition for Election in Precincts C, D and E, Fourth Ward, Dayton.
    Decided, June 15, 1904.
    
      Liquor Laws — What Constitutes Business Property under the Brannock Law — Bill Boards and Physicians’ Offices Eliminated— “Blocks” or Squares — Requisite Number of Signers of the Petition — Limit as to Time for Ordering Election.
    
    1. Bill boards occupying the frontage of lots within a proposed local option district do not entitle such frontage to be classed, under the Brannock Law, as “property devoted to manufacturing, mercantile or other business purposes”; and the offices of physicians where attached to residences will also be regarded as residence property.
    2. Both sides of the streets bounding a proposed local option district should be considered in determining whether 55 per cent, of the property abutting thereon for a length of 500 feet or between two streets is devoted to manufacturing, mercantile or other business purposes.
    3. Where there is included within the boundaries, sought to be established as a residence district for the purpose of an election under the Brannock Law, certain blocks or squares devoted to business purposes, the petition for an election will be denied for the entire district.
    4. The provision of Section 1 of the Brannock Law, limiting the time within which the mayor or a judge of the common pleas court may order an election to not less than twenty nor more than thirty days, is not mandatory but directory.
    Brown, J.
    On May 24, 1904, there was filed with Judge Snediker of this bench a petition under the law passed April 18, 1904, approved April 19, 1904 (97 O. L., 87), entitled:
    “An act further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in residence districts of municipal corporations. ’ ’
   This petition consisted of forty-five sheets, numbered consecutively, being all of the same proper form as required by this act, each sheet containing from two to thirty-three names — in the aggregate, 560 names.

Upon the filing of this petition, the judges determined, after due consideration, to establish a set of rules for the conduct of such hearings, which rules have been made public.

In this case the petitioners, being represented by counsel, and counsel appearing for certain property owners interested, the hearing has been held after several adjournments occasioned by the necessities of the ease. The hearing was finally closed yesterday.

In order to save lengthy definitions of parties, the parties favoring the petition will be spoken of as “the petitioners,” and the parties representing property holders adverse to the petition will be called “the adverse party.”

Testimony was offered under the established rules of evidence tending to show under rule six adopted by this court:

First, that said petition complies substantially in form with the requirements of the law and with these rules; second, that it is properly filed; third, that notice has been given as provided herein; fourth, that the district referred to contains not less than 300 nor more than 2,000 qualified electors, and is a residence district under the provisions of Section 4 of of said act; fifth, that the persons signing said petition are 40 per cent, or more of the qualified electors of said residence district under the provisions of Section 8 of said act.

At the time the case was originally set for hearing by Judge Snediker, he was engaged in the trial of a murder case, and under rule eight, adopted by this court, which provides that “in ease the judge with whom said petition is filed, by reason of sickness or other disability, absence, or being otherwise occupied, is unable to preside at such hearing, any other judge of this court may do so,” Judge Brown presided at the first and subsequent hearings thereof.

Therefore, although Judge Brown will determine this case upon the law and the facts, it should be stated that where the law is interpretated in this decision, the same is done after full consultation and advice with Judges Kumler and Snediker of this bench, who coincide therewith.

To establish their ease, the petitioners introduced the testimony of some fifty-three witnesses. The adverse party introduced certain plats and the testimony of the county engineer. The witnesses for the petitioners were principally men who had circulated the petition, who testified in the main that the names ■signed to the petition were obtained by them after full representation as to what the petition contained, and after inquiry ■as to whether the person solicited to sign the same was a bona fide elector of either precinct C, precinct D or precinct E of ■the fourth ward of the city of Dayton.

The testimony shows that there were at least 560 bona fide ■signaures. No testimony was introduced as to sheet No. 39, containing sixteen names, which left the total number of petitioners considered 544. These 544 names were checked up by ■a committee of three of the petitioners by means of slips ■alphabetically arranged, and the registration number of each voter placed thereon, and the original list checked. Testimony was introduced showing that ten names on the petition, of persons who were not registered in the precinct, were qualified electors and entitle to register for this election. A package of ■sixty-seven names was also presented, the former residence of many of whom had been ascertained, but no positive evidence was introduced to prove that these sixty-seven names were entitled to registry, although these gentlemen testified that they were of the opinion, from the best of their information, that these names were those of electors who had the right to become •qualified for this election.

The testimony of the Clerk of the Board of Supervisors of Elections for this county shows that in this district the following electors voted at the preceding general election in November, 1903 — precinct C, 512; precinct D, 367; precinct E, .279; total, 1,158.

The Secretary of the City Board of Elections, which board has charge of he registration and the books thereof, testified that the legally registered voters in these precincts, after deducting those erased by reason of removal certificates only, is as follows: Precinct C, 827; precinct D, 598; total, 1,854.

Under Section 8 of this act it is provided, that the “mayor or judge (with whom these motions are filed) shall order such election when the petition is signed by as many qualified electors as shall equal in number 40 per cent, of votes cast in said residence district at the last preceding general election.”

Therefore, 464 qualified electors must have signed this petition in order to come under this provision of the law. I find, therefore, from the testimony introduced, that more than the requisite number of qualified electors have signed the petition.

It is claimed by counsel of the- adverse party, first, that under Section 4, Paragraph 3, the district contains more than 2,000 qualified electors, and is not a residence district under the provisions of Section 4 of the act.

I will consider first the question of the number of qualified electors of said district. The testimony of the Clerk of the City Board of Elections shows that there are 1,854 qualified voters within this district as shown by the books of registration, including those who may have died or moved from the district since they registered. It is claimed in argument by counsel for the adverse party, that the proof shows that there are sixty-seven legal electors who have signed the petition who have not qualified, but are entitled.to qualify for this election, and therefore, reasoning by way of proportion, taking the number of electors who voted at the last general election, in proportion to the number of qualified petitioners, that this proportion, being carried through, there would be shown such an increase of electors in these three precincts, that the number would exceed 2,000, the maximum under Section 4, Paragraph 3 of this act. This manner of reasoning in order to obtain proof, we believe, is faulty, because the proportion is not correct, for the reason that the electors who have removed from this district to residences outside of the city, or who have died, or for any reason become disqualified since their registration, have not been taken into consideration, and that to follow such a line of reasoning without any proof would be faulty.

It is, therefore, -found that the number of qualified electors, as shown by the evidences, does not exceed 2,000.

We will now take up the question of whether or not this is a residence district, as provided by the act. Counsel for the adverse party claim that there are certain squares or blocks which are devoted to business purposes within the district, and therefore, that the order can not be made, because if there are contained within the boundaries and districts certain sections of business streets or blocks, the order must fail as to the entire district. If the evidence shows such h condition, the claim of the adverse party should be sustained.

The testimony of the Deputy County Surveyor was introduced by the counsel representing the adverse party. There was introduced in evidence, first, the city plat containing the precincts, regularly defined and marked off by the Clerk of the City Board of Elections; second, the plat of the east side of North Main street, from Adrian street to Herman avenue, showing the total frontage and the purposes for which said side of the street is occupied in feet and fractions thereof; third, a plat showing the north side of Lehman street from Williard street to Forest avenue, showing the same thing.

I will first consider the plat of Main street, between Adrian street and Herman avenue. The total frontage of Main street, as shown by the plat, is 558.4 feet. One of the premises is occupied by a saloon, fronting 16.45 feet, which must be eliminated under the law, leaving 541.95 feet for consideration. It is claimed by counsel for the adverse parties that, if 55 per cent, of this foot frontage is occupied for and devoted to manufacturing, mercantile or other business purposes, not including saloons, the petition can not be granted under the act.

Let us consider this frontage first, as if this were the proper construction of the law and we will consider the construction of the law hereafter.

Commencing at Adrian street and going north, we will mark down the abutting property in one column as devoted to manufacturing, mercantile or other purposes in the order in which they come — grocery, 13.7 feet; cigars and confectionery, 13.7 feet; drugstore, 19.6 feet; stairway, 3.8 feet; Blaik Hardware Co., 12.9 feet; coal and feed office, 16.3 feet; vacant, 1.4 feet; grocery company, 34.6 feet; total, 116 feet.

It is claimed that there should be"added to this the doctor’s offices and the space occupied by a billboard, as follows: Doctor’s office, 12.3 feet; doctor’s office 16.15 feet; doctor’s office, 13.5 feet; total, 41.95 feet, making a sum total of 157.95 feet. Adding to this the space occupied by the billboard, 148.6 feet, makes 309.9 feet altogether. Fifty-five per cent, of the total frontage would be 298.07 feet. Therefore, to make the 55 per cent, under the construction of the law as claimed by the adverse party, it would require the counting of the frontage both of the billboards and the doctors’ offices as business property. We are of the opinion that doctor’s offices, when attached to residences, are residence property and not business property, and that billboards, while in a sense business, because the parties erecting and using the same are in that business, yet under the proper construction of this act it was not the intention of the act to include billboards as “devoted to manufacturing, mercantile or other business purposes.” Therefore, in either view of the construction of the law, the east side of Main street, between Adrian street and Herman evenue, is a residence district.

But let us examine the law to ascertain if the claim of the adverse party is well founded. It is claimed by counsel of the petitioners that, under any circumstances, both sides of the street should be considered in determining whether 55 per cent, is business property or not.

Section 4, Paragraph 3, of the act provides:

“The phrase, ‘residence district,’ as used in this act shall be construed to mean any clearly described, contiguous, compact section or territory in a municipal corporation bounded by street, corporation, or other well-recognized lines or boundaries, and containing not fewer than 300 qualified electors, nor more than 2,000 qualified electors; and such district shall not contain any block in which one-half or more of the foot frontage of such block is occupied by buildings and premises actually devoted to commercial, manufacturing, mercantile or other business purposes, not including saloons; provided, however, that in determining the total foot frontage referred to herein, property occupied by saloons shall not be counted as either business or residence property;” (we now come to the clause under which the claims of counsel are made) “and further, such residence district shall not contain the property or premises abutting on a street lying beween two consecutive cross or intersecting streets, from street to street, or extending for a distance of not less than 500 feet along such street on which said premises abut, whenever 55 per cent, of the foot frontage of such abutting property is occupied for and devoted to manufacturing, mercantile or other business purposes, not including saloons; provided, however, that in determining the total foot frontage referred to herein, property occupied by saloons shall not be counted as either business or residence property;” (now follows the clause containing the claim of the petitioners, that both sides of the street should be counted) ‘ ‘ and on the opposite side of said portion of said street on which said property abuts, 55 per cent, of the foot frontage abutting thereon is occupied for and actually devoted to manufacturing, mercantile or other business purposes, not including saloons.-”

These provisions of the act must all be considered together in properly construing them, in order to arrive at the proper intention. It is clear that the act is meant to cover two distinct kinds of property; one, an enire block “devoted to commercial, manufacturing, mercantile or other business purposes,” and also a street, upon each side of which, between two streets or for a length of 500 feet, 55 per cent, is devoted to manufacturing, mercantile or other business purposes. We are, therefore, of the opinion that the proper construction of law would compel us to consider both sides of Main street between Adrian street and Herman avenue.

The west side of Main street has only 83 feet »of business property out of a total frontage of 520 feet.

Therefore the contention of counsel, in opposition, is not well taken, in any view of the law or facts.

We now come to the consideration of the plat bounded by Lehman street, Willard street, Palmer street and Forest avenue. We will first consider the north side of Lehman street, between Forest avenue and Willard street. It is claimed that this property is occupied and in actual use as manufacturing property. In order to maintain this, it must be shown that 50 per cent, under the view of counsel for the adverse party, is actually devoted to manufacturing purposes. The testimony shows as follows: Thresher Electric Co., 88.5 feet front; Hydraulic Co., 120 feet; Model Laundry stable, 72 feet; Model Laundry, 187.5 feet; total, 468 feet.

Fifty per cent, would be 234 feet. This would necessitate the counting of the lot marked “Model Laundry” and the part marked “Hydraulic,” in order to make up more than 50 per cent. It is shown by the testimony that the Model Laundry does not occupy the corner lot, marked on the plat “187.5 feet,” but that the same is a vacant lot, unfenced, the Model Laundry lying north and west, under a lease from the Dayton Hydraulic Company. Therefore, the 187.5 feet at the corner of Willard and Lehman streets should be eliminated. The 120 feet marked “Hydraulic,” which includes the abandoned race and the banks, should also eliminated as not being property contemplated under a proper construction of this act.

Therefore, even if this property came under the 50 per cent, rule, the facts would not warrant the theory of counsel. Much less could it be established under the rule counting both sides of the street, because the opposite side is vacant property, excepting a small frontage of about 60 feet, formerly occupied by the electric light works. This also applies to Forest avenue. The east side of Forest avenue is occupied by the old Stilwell-Bieree plant for 499 feet. The balance of the square is a vacant lot and a residence; total frontage, 156.7. The west side of Forest avenue, it is claimed, should not be considered as residence property; but if we adopt the 55 per cent, rule, as claimed by counsel for„ the adverse party, we must consider the west side as unoccupied and unsuitable for residence purposes.

Therefore, 55 per cent, of business property, on both sides of this avenue, can not be shown.

But we are of the opinion that the consideration of this block, under a proper construction of the law, should be under the first clause defining the residence district, as above quoted, to-wit:

“And such district shall not contain any block in which one-half or more of the foot frontage of such block is occupied by buildings and premises actually devoted to commercial, manufacturing, mercantile or other business purposes, not including saloons.” Section 4, Paragraph 3.

The statute defines the construction to be put upon the word “block” in Section 4, Paragraph 5, to-wit: “The term ‘block’ shall be construed to mean the territory bounded by four well-recognized adjacent streets, and not alleys.”

Therefore, in considering the objection raised as to this territory, we must consider the block bounded by Forest avenue on the west, Willard street on the east, Palmer street on the north, and Lehman street on the south, and the testimony clearly shows that not “one-half or more of the frontage of such block is occupied by buildings and premises actually devoted to commercial, manufacturing, mercantile or other business purposes. ’ ’ We are, therefore, of the opinion that under the law and the evidence the provisions of the act and the rules of this court have been complied with in every respect, and that the petition should be granted.

Under Section 1 of the act it is provided that when these requirements are complied with, the “common pleas judge shall order a special election to be held in not less than twenty and not more than thirty days from the filing of such petition.”

We are of the opinion that the time mentioned in this section is directory and not mandatory. The objects of the petition might clearly be defeated by lengthy hearings, which could be continued at great length as an excuse for defeating the objects of the act.

In this hearing the adjournments have been necessary and the hearing prompt and without any unnecessary delays whatever.

The law provides that the mayor shall.issue a proclamation calling for the election, and that this proclamation shall require ten days’ notice. The law further provides for registration days, which shall be the second Friday and Saturday preceding the election. Therefore, time must be given for these purposes as required by law, and we fix the time and places for this special election as follows: In Precincts C., D. and E. of the Fourth Ward, Dayton, at the usual places for holding elections, on July 9, 1904, between the hours provided by law. And the order directing such special election is issued to the mayor of the city of Dayton, and to the president of the city board of elections of the city of Dayton, as required by the statute. The notices will be served upon the mayor and upon the president of the city board of elections by the sheriff, who will make his return to this court according to law. The costs of this proceeding will be taxed against the petitioners.

A. L. Hughes and O. M. Gottschall, for plaintiffs.

Sprigg & Fitzgerald and McMahon <& McMahon, for defendants.  