number we add all the employes in the service of the great private corporations now operating these instrumentalities, the three millions or more, if organized-as they undoubtedly would be organizedwould practically dictate the policy of the government. If to the annual rivers and harbors "pork barrel" and the biennial public buildings "pork barrel" we should add an annual railroad "pork barrel" bill, the public expenditures would increase to such a sum that the three billion dollar Congress would be looked back to as an example

of political self-restraint and economy. The Congressman from every district in addition to asking for a public building, would demand a new railroad station, a branch railroad and other expensive additions. Between the effort to decrease freight rates in order to cultivate the votes of the shippers and consumers, to increase wages in order

to cultivate the labor vote, and the "log rolling" incident to the making of permanent improvements in order to make each Congressman solid with his constituents, the annual expenditures would be increased to a point beyond the wildest imaginings.

The Ship Purchase Act in one aspect presents the evil of government ownership in its worst form, for it does not propose that the government shall completely occupy the field, but that it shall partially occupy it in competition with its own citizens. The business, it is practically conceded, will not be carried on at a profit, but probably will be carried at a loss, which of course must be recouped from taxes imposed upon the private ship owners in common with the other citizens of the country. Think of a government in time of peace-for I recognize that anything may be justified in time of war-embarking in a business enterprise and taxing its own competitors to the end that the business may be carried on to their injury and perhaps to their ultimate ruin

The regulation and control of merely self-regarding conduct, the multiplication

of administrative boards and similar agencies and the invasion of the field of private business, which I have thus far particularized, illustrate rather than enumerate the various tendencies of modern legislation and government to depart from those sound and wholesome principles which hitherto have of preserving the individual against undue been supposed to operate in the direction

restraint and oppression.

Imposing Special Burdens on Particular Classes.-Class legislation, the most odious form of legislative abuse, is by no means infrequent. In state and nation statutes are to be found which select for special privilege one class of great voting strength to set apart for special burdens another class of small numerical power at the polls.

Next to the separation and distribution of the legislative, executive and judicial powers, the most important feature of our plan of government is the division of the aggregate powers of government between the nation and the several states, to the one by enumeration and to the other by reservation. I believe in the most liberal construction of the national powers actually granted, but I also believe in the rigid exclusion of the national government from those powers which have been actually reserved to the states. The local government is in immediate contact with the local problems and should be able to deal with them

more wisely and more effectively than the general government having its seat at a distance. The need of preserving the power and enforcing the duty of local self-government is imperative, and especially so in a country, such as ours, of vast population and extent, possessing almost every variety of soil and climate, of greatly diversified interests and occupations, and having all sorts of differing conditions to deal with.

There is, unfortunately, however, a constantly growing tendency on the part of the general government to intrude upon the powers of the state governments, more by way of relieving them from responsibilities they are willing to shirk than by usurping powers they are anxious to retain. Especially does any inroad or suggested inroad upon the federal treasury for state purposes meet with instant and hearty approval. The grave danger of all this is that the ability as well as the desire of the people of the several states to carry their own burdens and correct their own shortcomings will gradually lessen and finally disappear, with the result that the states will become mere geographical subdivisions and the federal character of the nation will cease to exist save as a more or less discredited tradition.

These and many other matters afford temptation to further discussion to which I cannot yield without undue trespass upon your patience, which I feel has already been quite sufficiently taxed.

Conclusion. Fifty years ago a great French writer-Laboulaye, I think it was -speaking through the lips of one of his American characters, uttered these words. of wisdom and power, words which are as true today as they were when they were written:

"The more democratic a people is, the more it is necessary that the individual be strong and his property sacred.

We are a nation of sovereigns, and everything that weakens the individual tends toward demagogy, that is, toward disorder and ruin;

whereas everything that fortifies the individual tends toward democracy, that is, the reign of reason and the Evangel. A free country is a country where each citizen is absolute master of his conscience, his per

son, and his goods. If the day ever comes when individual rights are swallowed up by those of the general interest, that day will see the end of Washington's handiwork; we will be a mob and we will have a master."

It is now as it has always been, that when the visionary or the demagogue advocates a new law or policy or scheme of government which tends to curtail the liberties of the individual he loudly insists that he is acting for the general interest and thereby surrounds his propaganda with such a halo of sanctity that opposition or even candid criticism is looked upon as sacrilege.

But the time has come when every true lover of his country must refuse to be misled or overawed by specious claims of this character. Individual liberty and the common good are not incompatible, but are entirely consistent with one another. Both are desirable and both may be had, but we must demand the substance of both and not accept the counterfeit of either. Crimes, we are told, have been committed in the name of liberty. But either the thing that was called a crime was no crime or the name of liberty was profaned, as though one should become an anarchist in the name of order. Liberty and order are the two most precious things beneath the stars. The duty which rests upon us of this generation is the same that has rested upon all the generations of the past: to be vigilant to see and resolute to repel every attempt, however insidious or indirect, to destroy liberty in the name of order, or order in the name of liberty, for the alternative of one is despotism and of the other the mob. GEORGE SUTHERLAND,

Salt Lake City, Utah.

LANDLORD AND TENANT-HOLDING

OVER.

BUMILLER v. WALKER.

Supreme Court of Ohio. Feb. 13, 1917.

(Syllabus by the Court.)

A landlord and tenant in possession under an existing lease may make a parol agreement, prior to the expiration of such lease, for a monthly tenancy in future from and after the original term, provided the tenant continues his Occupancy and the landlord assents and acquiesces therein solely in pursuance of such oral agreement.

JONES, J. Can a lessor and lessee, while the latter is in possession under an existing written lease, make a binding parol agreement before the expiration of such lease for monthly tenancy that is to continue from and after the original term? Upon this question, in the two foregoing cases, the nisi prius courts were not in accord. The Court of Appeals held that the continued possession of the tenant was referable only to the original contract of lease. In these cases the question arose in different form. In the Bumiller case, if such oral agreement was valid, the testimony offered was competent, and the charge to the jury was properly given. In the Kahn case it appears from the journal entry that the default judgment would have been set aside and the tenant's defense admitted if the court had adjudged the defense to be valid.

The Ohio statute of frauds requires that such agreements as are in controversy here must be in writing in order to be enforceable; but a parol agreement for the period claimed by the defendants in error would be valid if accompanied by a delivery of possession under such an agreement. Moore v. Beasley, 3 Ohio 294, and Grant v. Ramsey, 7 Ohio St. 158. The divergence of legal view arises from the conception of the character and legal effect of continuous possession by a tenant under a parol contract made by him while in possession under his written lease. The Court of Appeals held that if there was an oral agreement for a monthly tenancy entered into between the lessor and lessee, while the latter was still in possession under his demise, the continuity of his possession was in law referable to the original contract, if nothing were proven further than the retention of possession and the payment of rent. No exactly similar question has been determined by the Supreme Court of this state in any reported case. However, counsel on

both sides confidently claim that former decisions of this court, by analogy, support their several contentions.

It is well settled that, in the absence of any agreement, a yearly tenant who holds over and continues to pay rent as formerly under his previous term, becomes a tenant for another year under the same terms as in his original demise, and that the landlord, in the absence of such agreement, at the expiration of such term, may elect to treat him either as a trespasser or as a tenant for another year; and, as particularly germane to the principle here involved, it has been held by this court that a landlord, during the tenancy of his lessee, may enter into a valid oral arrangement providing for an increased rental for the ensuing year, and that, except as to such rental increase, the terms and conditions of the original lease will subsist. Moore v. Harter, 67 Ohio St. 250, 65 N. E. 883.

In the absence of any agreement, if a yearly tenant holds over his term, the law implies a contractual proposal on his part to hold over for another year upon the same terms and conditions as stipulated in his former term, and in such case the continuity of his possession is referable only to his former contract. It can be referable to no other, for no other exists. For that reason the principle has been established that the continuous possession of the tenant in such case is referable only to his former demise. It has been repeatedly held by this court that it is competent to show that the possession may be referable to such an oral agreement. And what could be more potent for that purpose than to show that the landlord and tenant agreed specifically for a monthly tenancy, which should begin at the termination of the existing term, and that the tenant remained in possession and the landlord yielded it at its expiration in pursuance of such arrangement? It is true that the statute requiring these contracts to be in writing was passed to prevent fraud. But to permit a lessor, who has allowed his tenant to continue in possession under an oral agreement for a monthly tenancy, to repudiate the transaction, would permit the statute to legalize the fraud it was intended to suppress, and, "under such circumstances, to enforce the statute, and leave the party who has been put into possession, by virtue of an agreement, to be treated as a wrongdoer, would not only be repugnant to justice, but would make the statute a shield and protection for injustice." Wilber v. Paine, 1 Ohio 256, and Grant v. Ramsey, supra. Either party may repudiate his own agreement before the same has been validated by

possession taken thereunder. It is conceded that the oral agreement would not fall within the operation of the statute if the tenant actually moved out and then moved in again. This is a refinement of legal technicality that seems fatuous when viewed in the light of its common sense application. In the case of either Bumiller or Kahn, at the moment when the prior lease expired, the lessor had the right of possession, with the option to treat the lessee either as a wrongdoer or as a tenant for another year. Permitting the tenant to remain in possession under an oral agreement is equivalent to an acquiescence in an implied re-entry and is a presumptive waiver of the technical requirement that the tenant must vacate and establish an actual re-entry.

The presumption that a tenant holding over after the expiration of a yearly term is a tenant from year to year is rebuttable; and to rebut this legal presumption the parties are permitted to show what their true intention was, where the tenant remained in possession at the expiration of his former term under a parol contract for a monthly tenancy and the landlord acquiesced therein.

a

In the case of Clinton Cloth Co. v. Gardner et al., 99. Ill. 152, the court, while holding that a tenant without a new arrangement with his landlord may be held for a presumptive renewal for the ensuing year irrespective of the intention of the tenant alone, sustained charge to the effect that the presumption might be rebutted if the jury found that the tenant remained in possession after the termination of the lease under an agreement with the landlord that such holding over should not operate as a renewal of the lease.

Ordinarily this court does not regard its unreported cases as judicial authority, for the reason that it is generally impossible to ascertain the concrete legal propositions involved and decided; but where a single question was involved, and that succinctly stated and de cided, it cannot be said that such unreported case is wholly without influence. Hafer V Corbin et al., 6 N. P. N. S. 468, a case similar to this, was decided by the Superior Court of Cincinnati in general term, wherein that court denied the validity of an oral contract for a monthly tenancy made with a tenant in possession, which monthly tenancy was to begin at the expiration of an existing term. This court (Corbín et al. v. Hafer, 72 Ohio St. 685. 76 N. E. 1122) without option, reversed the judgment of the general term, on authority of Moore v. Harter, 67 Ohio St. 250, 65 N. E. 883. It remains, then, to determine whether the principle here involved has been decided, by

analogy at least, in the case just cited; and it must be admitted that the dicta, and in one instance the syllabus, used in the earlier Ohio cases, have left the application of the legal principle in some confusion. In the case of Moore v. Harter, supra, upon an oral notification to the tenant while in possession under an existing term, the landlord was permitted to recover an increased rental to be paid during the ensuing year. The tenant neither agreed nor dissented. Had he agreed, the oral contract would have been invoked, as in this case. Not having dissented, the tenant was held to be bound for the new rental terms imposed while the remaining terms and conditions of the original lease continued in force. Had the tenant expressed his assent, or had he himself proposed a change for the ensuing year which was acquiesced in by the landlord, or had the tenant, as in that case, merely refrained from specific assent to the changed terms, in each and every event the legal effect would be the same. The court held that the possession, beginning on April 1, 1895, at the expiration of the prior term, was referable to the oral stipulation made by the landlord. The principle in that case may be applied by analogy to this. There the landlord exercised the right to rebut the presumption that his tenant continued in possession under the conditions of his prior term. If the landlord has this right, it is difficult to perceive why a similar and recip. rocal right cannot be invoked by his tenant. If a lessor has the right under these circumstances to stipulate orally for an increased rental, it follows that the lessee in like manner may agree with his landlord for a decreased rental; and in either case, if possession follows solely under such an arrangement, the parol agreement does not fall within the operation of the statute.

"The right of the landlord to rebut the presumption as against the tenant necessarily confers upon the tenant the reciprocal right to rebut the presumption of a tenancy from year to year as against the landlord seeking to recover rent from him upon the assumption that he is a tenant from year to year." 1 Underhill on Landlord and Tenant, § 98.

The case of Baltimore & Ohio R. Co. v. West. 57 Ohio St. 161, 49 N. E. 344, can have no application, for the manifest reason that there was no new mutual agreement made between the landlord and tenant, and therefore the latter was held for the ensuing year under the principle that by holding over without such agree ment he held impliedly under the terms and conditions of his original lease.

The case of Gladwell v. Holcomb et al., 60 Ohio St. 427, 54 N. E. 473, 71 Am. St. Rep. 724,

was one wherein a tenant sought to enforce a parol agreement and lease for the period of ten years. The case was correctly decided, and the third proposition of the syllabus is sound when applied to the facts therein stated. Under the authority of Baltimore & Ohio R. Co. v. West, supra, Gladwell's oral lease was unenforceable under the statute, and his tenancy became one merely from year to year, a term which Holcomb, the lessor, did not contest. Two early Ohio cases are frequently cited as apparently supporting the contention of the defendants in error in the instant cases. These are Armstrong v. Kattenhorn et al., 11 Ohio 265, and Crawford & Murray v. Wick, 18 Ohio St. 190, 98 Am. Dec. 103. In the latter case there was no agreement for any holdover tenancy following an unexpired term, but an effort was made orally to modify an existing lease by a change in its terms, effective during the life of the prior lease. It was not only a palpable case of attempting to circumvent the statute, but also a failure to take it out of the operation of the statute. The lessee being in present possession, the title could not be divested by parol. Kelley et al. v. Stanbery et al., 13 Ohio 408, and Barnett v. Barnes, 73 Ill. 216. The lessor had no possession to yield under which his parol contract could be made effective.

In the instant case the landlord, at the expiration of the written term, did have the right of possession, with an election at that time either to treat his tenant as a trespasser or permit him to retain his possession in pursuance of their oral arrangement. In the case of Armstrong v. Kattenhorn et al., supra, it does not clearly appear whether the possession under the oral agreement was to be taken by the tenant while he occupied it under his former lease, or whether it was so ambiguous as to be referable to either the old lease or to the new. The facts indicate that the case took the latter aspect; and that view seems to have been entertained by the judge delivering the opinion in the case of Moore v. Harter, supra, 67 Ohio St. at page 254, 65 N. E. 885. The opinion closes with the following language:

"The continuing in possession, after notice from the landlord to the tenant that he could not do so except under prescribed conditions, is presumed to be a possession under the named conditions."

Paraphrasing that language, and applying it to the instant cases, it may be said that the continuing in possession by the tenants, Bumiller and Kahn, after agreements with their landlords that they could do so under the prescribed conditions of monthly tenancy, is presumed to be possession under the named

conditions, and such possession could not be referable to the former leases without showing that the landlords had repudiated their contracts prior to the time the continued possession began. It was for the jury to say, if they found that such an oral contract was made, whether or not the possession taken by the tenant, and acquiesced in by the landlord at the expiration of the former term, was in pursuance of and referable to the oral contract, if any, made by the parties. Judgments reversed. JOHNSON, J., dissents.

NOTE.-Tenant Holding Over Pending Unsuccessful Negotiations for a New Lease.-The instant case shows that a parol agreement prior to expiration of a lease for a year for a tenancy thereafter from month to month is valid and the inquiry here proposed is whether such agreement need be express or whether it may be implied.

Thus in Henderson v. Schuykill Valley Clay Mfg. Co., 24 Pa. Super. Ct., 422, the facts show notice by tenant that he would quit unless certain improvements were made and the landlord at the time of the expiration acted in such a way as to cause the tenant to believe the improvements would be made. A holding over was not necessarily a holding over for an entire year.

And it has been held that a definite promise to reduce the rent but amount not fixed at the time of expiration, did not constitute a holding over, though pending negotiations the tenant made payments at the old rate. Goldsbrough v. Gable, 49 Ill. 554.

In Salas v. Davis, 120 Ga. 95, 47 S. E. 644, there was held not a holding over, by permission of the landlord, where the landlord importuned the tenant to say what he intended doing, but the tenant failed to give him any satisfaction until the time had passed and asked for a lease upon the old terms and the landlord said he would confer with the tenant as to the terms of a new lease. In this case the tenant was claiming a renewal.

In Leggett v. Louisiana Purchase Expo. Co., 157 Mo. App. 108, 137 S. W. 893, the landlord and tenant were negotiating for a new lease at the time of the expiration of the original lease. The tenant remained in possession pending negotiations. It was ruled that, if tenant held over with the express or tacit consent of the landlord, the latter could not regard the former as holding over for another term.

In Grant v. White, 42 Mo. 285, if negotiations for a new lease are pending and there is permission to hold over, the tenancy is at will.

In Kenwood Hotel Co. v. Hiland, 153 Ill. App. 209, it was similarly held where tenant held over during negotiations.

But in Smith v. Snyder, 168 Pa. 541, 32 Atl. 64, a tenant was held not justified in holding over by the mere failure of a landlord's agent to notify him of the refusal or acceptance of a further term upon terms different from those under original lease. See also Abell v. McDonnell, 39 Tex. Civ. App. 457, 87 S. W. 1066.

If a landlord promises to comply with a condition precedent to the taking of a new lease, a