text:
    RIGHTS IN PROPERTY DEEDED FOR COUNTY PURPOSES.
    [Circuit Court of Summit County.]
    First German Reformed Church v. Commissioners of Summit County.
    Decided, April Term, 1902.

      Deed Conveying Land in Fee to County — Consideration, the Establishment of a Seat of Justice Thereon — Neither an Abutting Owner or a Private Citizen — Can Enjoin the Building of a Jail Thereon — If Such Use of the Land is a Misuse — The Prosecuting Attorney Only Gan Enjoin — Distinction Between Dedication and Grant — Nuisance —Estoppel.

    1. A deed in the usual form, conveying land to county commissioners “in consideration of locating county seat of justice thereon,” conveys a complete title to the county for the purposes mentioned.
    2. The land having been acquired in full fee and for definite county purposes, private citizens, either as such or as abutting property owners, have no interest therein to protect; and if the property is about to be used for a wrong purpose, the public represented by the prosecuting attorney is the one to intervene by injunction.
    3. Should a jail built on such land be regarded as a nuisance, an action for its abatement could only be brought as provided by the statute — that is, on the ground it is a public nuisance; and for the maintenance of such a suit abutting owners and individuals are not the proper parties.
    4. Estoppel will lie against an action to enjoin the doing of a thing where no more than a doubt exists as to the right to do it, and there has been reasonable delay in the bringing of the suit, and lárge expense has in the meantime been incurred, of which the plaintiff may be charged with knowledge.
    Caldwell, J.; Marvin, J., and Hale, J., concur.
   This case is in tbis court on appeal from the court of common pleas, and it involves the right of the county commissioners to build the new county jail on what is known as the “court house grounds”'in the city of Akron,.Ohio.

It is claimed by the plaintiffs that the commissiimers of the county hold the property upon which the jail is being built in trust for the use of the public at large, and they aver that the dedication of the property was such by Simon Perkins that they have such au interest in it, both on account of their being members of the public and citizens of the county, and by reason of rights arising to them by reason of their property abutting upon the grounds in question, that they have a right to bring this action and have a right to restrain the use of the property for the purposes of the jail.

The rights of the parties to this action grow out of a deed given by Simon Perkins and Nancy Perkins, the wife of said Simon, to the county commissioners on July 11, 1840.

The deed reads as follows:

“Know all men by these presents that we, Simon Perkins and Nancy Perkins, wife of said Simon, of the county of Trumbull in the state of Ohio, in consideration of the location of the seat of justice for the county of Summit in said state, on block No. 26 in the gore between North and South Akron, and in fulfillment of our promises made before and at the time of the location aforesaid to make the following conveyance in case such location should be adopted and agreed upon by the commissioners for that purpose appointed, have bargained and sold and do hereby grant, bargain, sell and convey unto the commissioners of the county of Summit aforesaid and their successors in office the following described pieces or parcels of land in the gore between North and South Akron in the county of Summit and state of Ohio; ’ ’ and then the descriptions include two pieces of land, which it is unnecessary to recite.
“To have and to hold said premises, with the appurtenances unto the said commissioners of Summit county and their successors in office forever.
“And I, the said Simon Perkins, do for myself and my heirs hereby convenant with the said commissioners and their successors in office, that I am lawfully seized of the premises aforesaid, that the same are free from all encumbrances whatsoever, and that I will forever warrant and defend the same with the appurtenances unto said county commissioners, and their successors in office against the lawful claims and demands of all persons whatsoever.
“Provided nevertheless and the foregoing conveyance is upon these express conditions, viz., that a strip of land four rods in width off from north side of the piece or parcel of land first hereinbefore described, shall be laid open and be forever kept open to the public use for a public highway.”

The first piece described in the deed is this land on which the court house stands, including this street on the north. The second piece is the parcel now occupied by the old jail. That strip of land has been appropriated to the use of the highway by the county commissioners.

“That the residue of said piece or parcel of land first herein-before described shall never be appropriated to any other use than that of a public square of suitable dimensions (to be determined by the discretion of the commissioners of said county of Summit for the time being) and a site for the court house and county offices for said county of Summit, with a yard of suitable dimensions (also to be determined by the county commissioners of said county of Summit for the time being) if the county commissioners of said county shall at any time think proper to make such yard separate from the public square, and that the piece or parcel of land secondly hereinbefore described and conveyed (in block No. 27) shall be forever set apart and appropriated as a site and lot for the jail of said county of Summit. ’ ’

That lot is not involved in this action.

And the same is attested, signed, acknowledged and sealed.

The first question involved in the determination of this case is what title was transferred to the commissioners by this deed of the lands in question?

There is no evidence in the case showing the consideration paid by the county commissioners for the deed, and the consideration is to be determined entirely from the recitals in the first part of the deed, and the recital is, “In consideration of the location of the seat of justice for the county of Summit in said state, on block No. 26 in the gore between north and south Akron, and in fulfillment of our promises made before and at the time of the location aforesaid to make the following conveyance in ease such location should be adopted and agreed upon by the commissioners for that purpose appointed. ’ ’

This is equivalent to saying that the grantor in the deed had agreed with certain commissioners appointed for the location of the county seat in the county and the place where the court house should be built to deed to them the lands in question for the purposes indicated in the deed.

Then the deed has in it in full the language usual in granting a deed: “Have bargained and sold and do hereby grant, bargain, sell and convey unto the commissioners of the county of Summit aforesaid and their successors in office” the real estate named in the deed; and the habendum clause is, ‘ ‘ To have and to hold said premises, with the appurtenances unto the said commissioners of Summit county and their successors in office forever. ’ ’ And the deed contains in it full warranties of title.

The deed, in and of itself, contains all the elements necessary for the conveyance of a fee simple to 'the county commissioners; and it is not unlike Avery v. United States, 45 L. B., 144 (104 Fed. Rep., 711). In the conveyance in that case the deed was in the usual words of a fee simple deed and contained covenants of seizin and warranty. The conveying clause, after describing the property, concluded with the.words “as and for a public street of said city, ’ ’ and the court in that case say:

“The deed of Leonard Case can not in strictness be regarded as a pure donation. We have no other evidence as to the consideration than that shown by its recitals, and by the ordinance of the city granting to the vendor, in consideration of his conveyance, the right to occupy a portion of the sidewalks upon the four sides of the lot retained by him, and subsequently conveyed to the Cleveland Library Association. His deed recites that the consideration for his conveyance is one dollar, ‘and divers other considerations received, to my full satisfaction, of the city of Cleveland.’ ”

And the circuit court of appeals held that that granted the fee to the city.

The granting clause, the habendum, the warranty and the expression of the consideration in the deed were in character the same as is found in the deed before the court. The restriction in that deed was ‘ ‘ as and for a public street of said city, ’ ’ which, in its form and expression, differs somewhat from the deed under consideration; but whether that difference gives rise to a different law in regard to the deed it is not necessary to consider in the view we take of this case. But we regard Avery v. United States, supra, as quite conclusive on the question that in the deed before the court the county commissioners took a title in fee simple.

In Smith v. Heston et al, Commrs. of Butler County, 6 Ohio, 101, the facts were not unlike those in this case. The county of Butler was erected in 1803, and commissioners were appointed to fix the seat of justice therein. Before the place of the seat for justice was agreed upon, the proprietor of the town of Hamilton proposed to the commissioners, in writing, in case that town should be selected as the site, “to give, for the use of the county, a square for public buildings, agreeably to a plan of the town, etc., also a square for the church and burying-ground, consisting of eight town lots, together with the commons in front of the town, for public uses, such as boat yards, etc.,” and to “pay two hundred dollars towards erecting of public buildings, or court house.” The county seat was established at Hamilton and the two hundred dollars paid by the proprietor; but before the square for the public buildings was conveyed he died. The court thereafter ordered a conveyance in execution of the contract, in pursuance of which, the representatives of the proprietor made a deed to the commissioners of the county conveying the square for the use of public buildings for the inhabitants of the county of Butler.

Under these facts and the deed given, the case holds, in substance, the county got a complete title. And we hold in this case that the granting of these lands by the deed in question was not a dedication of the lands to the use of .the public in general, but were given to the public for certain and definite purposes so far as the building of the court house is concerned, in which property the public at large took no interest at all as individuals.

In the case last above cited the county commissioners made a lease of the premises for private purposes, and the action was brought by persons who claimed individual rights in the grounds devoted to public buildings and asked an injunction to stay the proposed leases. A demurrer was filed to the bill, and Judge Wright, in his opinion, says:

“Unless the complainants havé a right, as individuals, to interfere to protect county property, convéyed to it for the use of public buildings, and restrain the county commissioners, the agents of the county, from using such property, as in their judgment may best promote the object of the grant, and the public interest, the bill must be dismissed. The right to-interfere is sought to be sustained from analogy to the class of cases, where one of many commoners or parishioners seek to restrain from infringing the common right, or to establish a general modus. The analogy, in our opinion, does not hold. In those eases, the right to proceed depends on the fact that each commoner or parishioner is injured in his individual rights. In another class of cases where a great number are separately interested in the same subject, one or more, for convenience, and to prevent delay, may litigate the right in chancery, for himself and others interested; and the court having these parties before it will so control as to protect the rights of all concerned. The case before us, does not, in our opinion, belong to either of these masses.
“The present is an attempt, by two or three individuals, to enforce the rights of the county, and guard the county property from forfeiture. This court, in Putnam, v. Valentine, 5 Ohio, 189, has determined, that ‘rights purely public, are to be enforced in the name of the state, or the officer entrusted with the conduct of public suits. ’ If the rights of the county of Butler are violated or threatened, redress must be sought in the name of the county, or its acknowledged agents. There is no pretense in the bill that the complainants have any individual interest in this square, as tenants in common, or otherwise, which they ask us to protect. They are mere volunteers to take charge of the public or county interest, without ever having been entrusted by the county with the performance of such duty. ’ ’

I have quoted at length from this case because it seems to us very much in point.

And having determined that the parties bringing the action had no right or interest in the property as individuals, either by reason of their having property abutting or in proximity to the public buildings, or as members of the public, the bill was dismissed. »

In the case of Widow and Heirs at Law of Reynolds v. Commissioners, 5 Ohio, 204, the syllabus is:

“Where real estate is vested .absolutely in the county commissioners, for public purposes, they may dispose of it in the same manner as individuals could.”

In that ease, in 1819, B. Wells, for certain considerations received from the treasurer of Stark county, conveyed by a deed, with general warranty, lot No. 30, in Canton, Ohio, to the then commissioners, to hold for the use of the county, thereon to erect a court house, offices, etc., and. for no other purpose. That deed contained a proviso that it should be void if the lot should be appropriated to any other purpose. On May 23, 1823, Wells released to the commissioners all his right in reversion in that lot. The commissioners made an agreement to lease to Reynolds, the ancestor of the plaintiff, thirty feet front from the west part for ninety-nine years, renewable forever, at the rate of eighteen dollars per annum, but not to be subject to any occupation likely to interfere with the due enjoyment of the rest of the land; and, during the pendency of this suit, Reynolds died, and the suit was revived in the name of the widow and heirs. The commissioners denied the right of their predecessors to make the contract of lease and denied that they had any right. The court holds that after the deed was given conveying any right of reversion, or any and all rights, in the property, that the county commissioners became the entire owners of the property; and the question was whether the property was in the commissioners in trust by reason of its being a donation of the property. The court say: “ If the land be made subject to uses expressed on the face of the deed, which can not be enjoyed consistently with the exclusive dominion and enjoyment of the alienee, perhaps the trust might be enforced. As where lands were given to a municipal corporation, to be holden for a common walk, or public fountain, perhaps the purchaser may take it, subject to the rights of the''inhabitants.” But the court say “that when property held for general corporate purposes is aliened, even for purposes not corporate, such alienation is absolute.”

We understand this case to hold distinctly that there was no trust, either expressed or implied, in the conveyance of this property to the county commissioners, there being no trust to the public, and the property being held by the commissioners for corporate purposes, that they might sell or dispose of it in any manner that to them might seem best.

The first conveyance of Wells to the commissioners had in it a condition that it was to be void in case the lot was appropriated to any other purpose than to erect the court house and public offices. Wells released his reversionary interest to the commissioners by which then it became their absolute property for general purposes, and subject to alienation by them. But if the first deed placed it in trust in the commissioners and thereby the public at large took an interest in the property, the second deed could not destroy that trust nor subvert the rights of the cestui que trust, and the case is in effect holding that the public never had any interest in the property.

In LeClercq v. Trustees, 7 Ohio (pt. 1), 218, Judge Lane, in this case, seems to mark with clearness the rights of the citizens or residents of a town under the circumstances of these cases cited.

‘ ‘ The fee of lands dedicated to public objects sometimes passes directly to the corporation, for whose use it is intended, and is sometimes held by a corporate town or by a county, in trust for the uses designated. In the first ease, as where land is given to a town, for corporate purposes, a vesting by the present statute (29 O. L., 351), or where land is acquired by a county by purchase, or where given for county objects, a vesting by Section 4 of the act of 1800 (2 Ter. Laws, 43), an absolute estate is held by the corporation, which they may alien (Reynolds v. Commissioners, 5 Ohio, 204), and third persons are not permitted to interfere with the management of its agents (Smith v. Heuston, 6 Ohio, 101). But when such corporation takes as trustees, to hold to prescribed uses, the cestui que use acquires a vested estate, the enjoyment of which may be obtained in chancery. In this case, the land was either vested in the town for the use of the inhabitants, by the general acts of dedication, or it passed to the county by the statute, to be held for this use. ’ ’

And then the court states that in the case it is in the trustees for the benefit of the public at large, one or more, especially one whose property is affected in value, may enforce the execution of the trust.

In the case of Avery v. United States, supra, the same law is established by the circuit court of appeals.

The distinction between dedication to the public use and that of grants to individuals, of either estates or easements, differ somewhat in their character, and they differ both in the manner of and evidence of its accomplishment, and in the character of the interest bestowed on the- public, as well as in the character of the rights which individuals are privileged to enjoy therein. And it differs also from a grant of lands to the public, as an individual in the organized form of a municipal corporation or board of county commissioners for the individual use of such corporation. These corporations are authorized to hold lands as individuals hold for the purposes for which they need them in their corporate capacity, and they convey lands thus held for' their corporate purposes in the same manner as individuals. The rights embraced in a dedication of land to public use differ from either of the foregoing. In that case the public, as an organized body, has no right to appropriate it, or any part of it, to its individual use; for it has no right, as a corporate body, of property therein. Its rights are passive and not active, and whatever right there is in the property by way of the easement is really vested in the public, and the officers representing the public organization manage it and control it merely as trustees for the public, for whose use it is dedicated.

In the deed of Simon Perkins to the county commissioners, a part of the lands that are to be used for court house purposes and buildings for the officers of the county, and also for the public square, and is to be divided and appropriated to each purpose separately at the will and discretion of the county commissioners. The commissioners have never divided the property any farther than to indicate by what it is now doing, which part it intends for the buildings named in the deed. The intent of the commissioners, if any intent appears, seems to indicate that the court house is to occupy the southerly part of the grounds in question, and the northerly part is to be devoted to a public square. The southerly part is that part against which the property of the plaintiff abuts, and, under the authorities just refered to, when the commissioners have set aside the property on the southerly side for court house and office buildings, or building, then that property being devoted entirely to the purposes of the corporation, as was intended by the grantor in the deed, the plaintiff gets no interest in that property whatever, neither by reason of his property abutting against the same, nor from the fact that he is a member of the public.

If the northerly side of the property is intended for a public square, which is not a use devoted entirely to the public necessities of the county,- it is not involved in this action, as the commssioners are not undertaking to build a jail upon that part. If the southerly part of the grounds are to be devoted to county purposes, then the commissioners can not be restrained for devoting it to county buildings not strictly in harmony with the provisions of the deed. If they are varying from the conditions therein named, it is a matter that does not concern the individuals of the town, whether they suffer peculiar and special damages thereby or not; but it becomes a matter for the public officers, and if they are going contrary to the provisions in the deed, it may be the duty of the county prosecutor to commence an action to restrain such use, but such action is not open to individuals, whether suffering special or general injury thereby.

It is said the building of the jail on the lot is a nuisance. If it is a nuisance, it is a public nuisance, and an individual has not a right to bring an action to abate a public nuisance. The state has provided by law the manner in which such actions may be brought.

If it is contended that there has not been such a separation of the land into building purposes and park purposes that it can be claimed in this case that the south portion of the land is devoted to county purposes, then we are inclined to think that until such division is made there is no action open to individuals. It was the intent of the grantor that the grounds in question should be used in connection with the court house as a court house yard or green, and for county purposes in connection with county business, to insure plenty of light, air, and safety from fire in cases of buildings on adjacent properties burning, and this is important to the county to protect its records; and for public sales, as a place for meeting of the militia, in those days, of the county. The deed provides for the ornamenting of ■ the grounds as a park. The intent is to have the grounds for county purposes, but arranged and beautified as a park, not that this ornamentation should in any way destroy the county, use, but to make attractive and inviting the grounds for such use. The primary use and purpose intended was for county purposes, the other is only to add to the pleasure of the primary use. The same purpose is not rebutted by permitting a yard to be fenced off around the court house. This view enables the county commissioners to accept and hold the deed under the state (29 O. L., 351), but if deeded for park purposes purely they could not accept, it is claimed, and we are not prepared to say they could. These grounds then having been-acquired, not by dedication, but by deed in full fee, and for county purposes, the plaintiff has no interest in the property. Having no interest in the property it has no right to protect. If the property is being used for a wrong purpose, the public, represented by its proper officer, is the only one to institute suit to protect the county.

It is claimed in this case, and evidence has been offered to sustain that claim, that the plaintiff is estopped by reason of the delay in bringing the action. It is claimed that the county commissioners had expended some seven or eight thousand dollars upon the erection of the jail; they had let their contracts and gone to large expense and trouble in and about the matter, and that the plaintiff remained silent during all that time.

If we are right in our conclusion heretofore that the plaintiff has no right in any part of the grounds in question, either by reason of special or general damages done to it, then this matter of estoppel is not material in this case; but if we are wrong in that conclusion, and the plaintiff had a right to bring this action, then its delay has been unnecessary and injurious to the county commissioners. The advertising and letting of contracts was of such a public character that they ought to be charged in this action with notice of the intention of the commissioners to build the jail upon these grounds long before the time that any action was commenced or any move made by them looking to a contesting of the right to the building of the jail where it is. But it is said that the county knew it had no right, and that it proceeded knowing that it had no right to build the jail upon these grounds, and that, therefore, an element of estoppel is wanting which will defeat the claim of estoppel by the defendant.

But if we are right in what we have said in determining this ease thus far, there was at least a doubtful question whether the commissioners had not a right to build the jail where they are now erecting it, and that question was one of so much doubt that it called to the plaintiff to act without delay, and is not a case where a party enters upon land where he knows he had no right to enter thereon, but it is a case where he may claim that he has a, right, and where nothing more than a doubt in regard to the matter can exist, and hence we think the evidences of estoppel are found in this case. And if we are wrong in holding that the plaintiff has no right to bring this action at all, then we hold that he is estopped from insisting that the county has no right to use this land for any purpose in harmony with the general purposes declared in the deed.

It is claimed by defendant that plaintiff will suffer no injury by reason of a jail being built where it is; that its property will not front the jail, but only the rear portion, and the distance will be over twenty feet between the buildings, not counting the extension of the portico on the south side.

In the view we take of this case it is unnecessary to determine this question, but the plaintiffs’ loss, if any, will be as nothing almost compared with defendants’ loss, if this injunction is allowed. We have- determined that the case must be disposed of on the questions that we have herein discussed, and in which we have concluded that the plaintiff has no cause of action, and its petition is dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    FRAUD IN THE SALE OF WOOL.
    [Circuit Court of Guernsey County.]
    John Hogue v. State of Ohio.
    Decided, April Term, 1902.

      Criminal Law — Fraud in the Sale of Wool — Requisites of Indictment Under Section 7069-3 — Insufficient Indictment — Effect of a Plea of Guilty to — Motion in Arrest of Judgment Must be Granted — Notwithstanding Fine and Costs Have Been Paid.

      1. An indictment charging fraud in the sale of wool under Section 7069-3 must allege that unwashed wool was sold as washed wool, and that the fleeces were wrapped in a manner calculated to defraud, and there must he definite and certain statements as to substances alleged to have been concealed in the fleeces.
    2. A motion in arrest of judgment must he sustained where entered under a plea of guilty to an insufficient indictment, and this is true notwithstanding the fine and costs imposed have been paid.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   John Hogue was indicted for the fraudulent sale of wool. His attorney waived arraignment and entered a plea of guilty for him, he being present in court at the time. He was adjudged to pay a fine and the costs of suit and now prosecutes this proceeding in error to reverse the judgment of the common pleas court.

The indictment was found under Section 7069-3, Revised Statutes. This section provides:

“That it shall be unlawful for any person or persons to sell any wool washed on sheep’s back or otherwise containing any unwashed tag-locks or any unwashed wool of any kind, or black wool or part of buck fleeces, or other substance foreign to the fleece or fleeces, which is calculated and intended to defraud the purchaser thereof.”

The charging part of the indictment sets forth:

“That John Hogue, late of said county, on June 14, 1901, unlawfully sold wool containing unwashed wool and parts of buck’s fleeces and other substances foreign to the fleeces of said wool, to one John Davidson with intent then and there, and thereby him, the said John Davidson, to defraud.”

The selling of unwashed wool as unwashed wool would certainly be no offense; and the same might be said of the sale of fleeces of black wool or parts of buck’s fleeces. The intent of the Legislature was to provide that a party should not fraudulently wrap up in a fleece of wool sold as unwashed wool, and supposed to be cleansed from all worthless or inferior substances, the very substances from which it is expected to be free.

This indictment is again defective for the reason that it does not plead the important fact that the wool so sold was put up in a manner calculated to defraud the purchaser. The indictment does not aver that the wool was sold with the intent to defaud, but that is not enough; it must not only be sold with the intent to defraud, but it must be put up in such a manner that the fleece or fleeces containing these inferior qualities and worthless substances would be calculated to defraud the purchaser. However much a fraud was intended, if the sale was not made in a manner calculated to defraud, no crime was committed. As suggested by counsel, if the unwashed wool, tag-locks or parts of. buck’s fleeces were wrapped upon the outside of the fleece or fleeces and the washed wool was within, no one would be deceived and no offense committed. The gravamen of the offense is in the wrapping up of the fleece or fleeces in a manner calculated to defraud. The indictment is wholly silent in this important particular.

Again, the indictment charged the accused with selling wool “containing unwashed wool and parts of buck’s fleeces and other substances foreign to the fleeces of said wool.” What other substances foreign to the fleeces? The indictment should be definite and certain. The accused had a right to be informed as to the character of the substances alleged to be secretly placed among the wool sold. It is not always good pleading to make the averment in the language of the statute. If the language of the statute is of such a character as to inform the accused fully and distinctly of the facts upon which the state relies, then it is sufficient; if it is not, then it is insufficient. Sutcliffe v. State, 18 Ohio, 469; Sharp v. State, 19 Ohio, 379; Lougee v. State, 11 Ohio, 68, 69; Lamberton v. State, 11 Ohio, 282; Poage v. State, 3 Ohio St., 229; Dillingham, v. State, 5 Ohio St., 280.

This language is not surplusage. The accused might be convicted of placing unwashed wool, parts of buck fleeces or “other substances foreign to the fleeces of said wool.” Proof <3f placing any one of the objectionable substances in the fleeces would be sufficient to sustain the indictment if properly pleaded. The indictment is insufficient in all three of the particulars referred to.

The next question is, what is the legal effect of the plea of guilty by the counsel of the accused and the payment of the fine and costs? If the accused had been convicted by a jury, the verdict would have been of no avail, although the accused had submitted voluntarily to a trial without interposing any objection to the indictment. A motion in arrest of judgment must have been sustained; and, even if no motion in arrest of judgment had been made, advantage could be taken of the defect in the indictment upon a petition in error.

We think a motion in arrest of judgment must have been sustained after the plea of guilty. The indictment being wholly insufficient, there was nothing to base the action upon. The accused did not plead guilty to any crime, but to an indictment hat charged no crime. He could not plead the judgment in bar of another prosecution and perhaps might have been released from imprisonment by a writ of habeas corpus had he been imprisoned for failure to pay the fine and costs. The fact of the accused paying the fine and costs could not validate the judgment. Such payment would of necessity be involuntary as made under duress to prevent imprisonment.

In 17 Am. & Eng. Enc. Law (2d Ed.), 588, under the head of “Jeopardy,” it is said:

“So where the indictment or information is so defective in form or substance that it will not support a valid judgment, it can not form the basis of proceedings which will put the defendant in jeopardy, and bar another prosecution.”

A large number of authorities are cited “to sustain the text. In Davis v. State, 19 Ohio St., 270, the defendants were in-dieted for violating the law against gaming. The indictment contained two counts — one for keeping a room to be occupied for gambling, etc.; and tbe second for keeping and exhibiting gaming devices, etc. The accused pleaded not guilty to the first count and guilty to the second count of the indictment, and judgment was entered upon the plea of guilty. Thereupon the court entered a nolle prosequi to the first count of the indictment. Upon petition in error filed in the Supreme Court the error assigned was the insufficiency of the indictment. The Supreme Court held the indictment insufficient to eharge ' a crime, reversed the judgment and discharged the accused. The question as to the effect of the plea of guilty was not raised or decided, it being assumed no doubt that it had no different effect than that of the verdict of a jury.

Bowers & Buchanan and Fred L. Rosemond, for Hogue.

A. L. Stevens, Prosecuting Attorney, contra.

The conclusion to which we have come makes it unnecessary to consider the question as to whether or not an attorney has authority to enter a plea of guilty to an indictment with the consent of the accused.

The judgment of the common pleas court is reversed at the cost of the state and the plaintiff in error is discharged.


text:
    APPROPRIATION BY MUNICIPALITIES.
    [Circuit Court of Lucas County.]
    Elizabeth Weber v. City of Toledo.
    Decided, October, 1901.

      Municipal Corporation — Appropriation of Property by, for Street Purposes — Award not Paid — May be Recovered by Devisee of the Owner at the Time of the Appropriation — Form of Action — Statute of Limitations — Evidence of Intention to Dedicate — Conclusivenesss of the Award.

    .-1. A widow has the right, as the devisee-of her husband’s estate, to bring an action in her own name against a municipality for recovery of the amount assessed, but never paid, in proceedings brought during the lifetime of her husband for appropriation for street purposes of land belonging to him.
    2. Such an action falls under Section 4977, and is not barred for twenty-one years.
    3. The remedy of a property owner whose land has been taken by a municipality without payment therefor is in a suit for compensation. An action in ejectment is not open to him against the municipality.
    4. The voluntary laying of a sidewalk by an abutting owner of property appropriated by a municipality for street purposes, without payment being made therefor, can not be construed as an intent to dedicate to public use the property so appropriated, or as a waiver of the right to recover payment therefor.
    5. Where a municipality in proceedings for the appropriation of property designates a certain person as the owner thereof, and proof is offered of the purchase by him of the property prior to the bringing of the suit, the municipality is precluded from denying many years later that the title was in the person in whose favor the judgment for the value of the property was rendered.
    Haynes, J.; Parker, J., and Hull, J., concur.
   Elizabeth Weber brought suit in the court of common pleas against the city of Toledo, in which she set up that about February 15, 1875, the common council of the city duly passed the necessary legislation to open Niagara street a certain width; that on June 21, 1875, the common council passed an ordinance to appropriate the lands described in the petition, being parts of lots 228 and 248, Stickney’s addition, and also parts of lots 223 and 224; and on September 12, 1875, the city council made application to the probate court, and steps were taken whereby the amount of compensation to the owners was assessed, and it states the amount. And she says these amounts have never been paid. She says in her petition also that the city did not take the land so appropriated, and nothing further was done until about the year 1886, when the city entered upon the lands, and graded them, and they have been taken and used for a street ever since. The precise ordinance under which the grading was done has not been set out, but it is admitted that the work was done under the authority of the city of Toledo. She says that one of the lots was conveyed to her husband in 1878, as I understand it; a portion of lot 224 was conveyed to Jacob Weber in 1875, February 12th, by warranty deed, and the north half of lot 223 was conveyed to Webber by Valentine II. Ketcham February 8, 1878, and they owned the other lot before. Jacob Weber died somewhere about 1888 or 1889, I believe, and by his last will and testament he gave all this property to his wife, the plaintiff herein, who has been and remained in possession of it ever since.

It is claimed on behalf of the city of Toledo that the plaintiff has no right to sue; that even if the city was liable to pay the appropriation money, the administrator or the executor of the will of Jacob Weber was the proper party to bring suit. It is claimed also that the statute of limitations is a bar to the action; also, that there has been a dedeication of the lots by the Webers.

'The testimony shows that the Webers were in possession of the property up to the time that the city graded the street, and had fences around it; that the city tore down the fences, graded the street, and took possession of the property, and subsequently the Webers built a sidewalk along that side of the street for the benefit of people living on that side of the street.

It is not necessary that I should spend very much time on the case. There are two cases which settle some of the questions for us, at least. The first ease is one decided by this court at the March Term, 1887, the court then being composed of the original members, Upson, Baldwin, and myself. This is Toledo v. Groll, 2 C. C., 199, in which John Groll brought suit to recover the amount of $1,831 that had been awarded to him in certain proceedings brought by the city in the probate court to extend East Broadway across Groll’s land in East Toledo. The land had been appropriated in 1873. The city council passed a resolution directing the street commissioner to take possession of the land and open the street, but the street commissioner did not do it. The matter remained in that condition until 1883, when the city council again passed a resolution directing the street commissioner to open the street, which the street commissioner did; and in 1884 the plaintiff began his suit, being eleven years after the award had been made. To that a contest was made by the city, and a decision was rendered by the court. After citing the statute, Section 2260, Revised Statutes, we cited from the opinion of Judge Gilmore in delivering the opinion of the Supreme Court in Ryan v. Hoffman, 26 Ohio St., 109, 120, wherein the judge said:

‘ ‘ The provisions of this section are evidently intended for the benefit of the landowner, preventing as they do the land from being hung up in uncertainty for an unreasonable length of time; and a strict compliance with its requirements could be waived by the owner. An acceptance of the money assessed as compensation after the expiration of six months from the date of the assessment and delivery of possession, would constitute such a waiver and operate as a ratification of the proceedings. ’ ’

At page 122 of the same ease he says:

“The second objection is that even if the eity takes and pays for the property condemned, it takes the title by purchase, and not by appropriation, and hence can not assess the expense on the adjoining property. From what has been before said, it will appear that there is no force in this objection. We think the city will take the title by appropriation; but the right to assess the expense upon the adjoining property depends upon other provisions of the municipal code and other proceedings not before us.”

This case was a proceeding in mandamus to compel the city to pay the amount of the assessment of compensation made by the jury.

We further cited in the same case, Trustees C. S. Ry. Co. v. Haas, 42 Ohio St., 239, where the court held that the failure of the corporation to pay and take possession of the land within sis months was no bar to a proceeding by the corporation to appropriate the same property for the same public use, and that the case was governed by the same rule as in case of municipal corporations. This court, then proceeding in announcing its decision, said:

“We have said that we find upon the city’s making the order in 1883 and taking possession of the property, that it was proceeding under the order for the appropriation, and was seeking to take the property by virtue of that appropriation, and we think the true rule is that the owner of the property had his election to waive the forfeiture ■ of the city to take within the sis months and to demand of the city the amount of compensation assessed by the jury at the time the city took possession in 1883; and that by the demand he made of the city for the award of the jury, and the bringing of this suit for the same, making no objection to the city opening the street, he ratified the appropriation and is entitled on the facts stated to recover the amount of the assessment made by the jury. The court below having so found, its judgment is affirmed.
“Question is made as to when interest should commence to run upon the assessment.
“The plaintiff below had the use of the property during the time from 1878 to 1883, with full right to dispose of or sell the same free from the order of appropriation, and at the time of taking the property in 1883, had the right to elect to take the compensation awarded or to have a new assessment made. We therefore are of the opinion, that interest should commence to run from 1883; and the court below having so found, we affirm the judgment in that respect.”

That case went to the Supreme Court and was affirmed without report. Toledo v. Groll, 23 Bull., 220.

Clark v. Cleveland, 9 C. C., 118, is a case that is also applicable to this one, besides containing some good law. It was decided in Cuyahoga county in 1894, and was tried before Judges Baldwin, Caldwell and Hale, Judge Baldwin having sat in the ease from which I read, Toledo v. Groll, supra. I will read the syllabus:

“After conditional judgment in favor of the plaintiff in error under 66 O. L., Section 537, p. 240, Revised Statutes, 2260, in appropriation proceedings against the city of Cleveland, he conveyed the lands in fee simple. Thereafter, and after the expiration of ■ the six months provided for in that statute, and without any new appropriation contract, the city took possession of the land, but did not pay therefor.
•“Held; The right of the vendor to receive the damages under the conditional judgment had ended, and the right of action for damages for the taking of the land accrued to the vendee.”

It will be observed that the facts of the ease are exactly like those of the case at bar. After stating the facts of the case, and after citing the ease of Toledo v. Groll, 2 C. C., the court say:

“We think that was good law. The property owner had the election at the time of the city taking possession to determine how he would sue for the amount awarded him. We do not think that a former owner of that land, who had parted with that land by warranty deed in fee simple, had the right to make such election and require payment by the city to him for that land of which he had long ceased to be the owner. We are therefore of the opinion that when, after the six months expired, the city took possession of that ten feet, the right to recover for that was in Mercy J. Phillips, and not in Clarke. The decision of the court of common pleas is affirmed.”

That sustains the position that the plaintiff in this ease is the one authorized to sue; and so we hold.

Now, in regard to the statute of limitations. The title in this property being in Mrs. Weber, and she having the right of election when the property was taken, we think she should not be cut off short of twenty-one years (Section 4977, Revised Statutes), and that the six years statute (Section 4981, Revised Statutes), does not apply to the cáse.

It is claimed here that there had been a dedication of this property. We are clearly of the opinion that there had not been a dedication, or anything from which the jury could infer that there was a dedication. The statute (Section 2232, Revised Statutes, et seq.), provides that where land is taken for and used as a street, the compensation shall be made, but it does not say that it shall be first made. It is held by the Supreme Court that the rule that applies to railway companies does not apply to streets. The city takes possession of a street. The owner of the property can not eject the city from the street, as we understand the case, and the only remedy that is left him is to seek to obtain the compensation which is allowed him; and we think in a case of this kind, any act like putting a sidewalk on the street which the city has a right to improve, and and we think in a case of that kind, any act like putting a sidewalk was laid down by order of the city or voluntarily by the owner, for the purpose of enabling persons passing on the street to use it, can not be construed into any act which shows an intent to dedicate the property to the public. The owner of the land does not waive his rights by any such act as that. To be a dedication there must be a clear intention to dedicate, and that evinced by acts that clearly show such intent to dedicate. We think no act of this kind can be construed to show any attempt to dedicate. Plaintiff in the ease says that she never had dedicated. She went out to object when they came to open the street, but I think she did not go into that, or was not allowed to; at any rate, nothing further was said about it. She says her husband always during his life said he never •would give any of his property, not even a shovelful, to the city.

T. L. Gifford for plaintiff in error.

M. R. Brailey and J. P. Manton, for defendant in error.

We therefore hold that the judgment of the court of common pleas should be reversed and a new trial awarded.


text:
    City of Toledo v. Elizabeth Weber.
    Haynes, J.; Parker, J., and Hull, J., concur.
    Heard on error.
   Petition in error is brought here to reverse the judgment of the court of common pleas in an action brought by Elizabeth Weber in the court of common pleas against the city of Toledo. The case has been here once before, and the principal questions have been decided so far as this court is concerned.

The controversy arises out of certain awards made by a jury in the probate court of this county for the opening "of Niagara street in the city of Toledo, and was in regard to a portion of lot 223 Stiekney’s addition, as well as lot 224 in the same addition. The matter, so far as pertained to lot 224, was decided before. The judgment of the court below was substantially in accordance with the views of this court. The principal controversy here arises in regard to some matters which were set up in a subsequent pleading and certain questions which arise in regard to the northerly thirty feet of the northeasterly one-half of lot 223, and the subject of controversy amounts to $87 in money, being the amount said to have been awarded by the jury to the owner of the property.

The record discloses that there was in regard to that street a dedication made by certain of the property owners under date of June 29, 1870; but it appears that there were nine parcels of land abutting on this street whose owners did not sign, and subsequently, on September 16, 1875, the city filed in the probate court of this county a petition to appropriate the property abutting on this street. The record discloses that the appropriation was for those parcels of property said to be owned by those persons who had not signed the dedication or plat— so far as those who dedicated on the plat was concerned, the city rested upon that and apparently accepted the plat — at any rate, they did not appropriate the property.

In 1890, perhaps, the city took possession of the property and opened the street, and the right of the parties in regard to the question as of that date is discussed and is already decided and will not be repeated here.- The controversy now is about this $87 and about the thirty feet of the northeasterly half of lot 223, and we find this state of facts disclosed, and we think established by the plat. Mr. Y. H. Ketcham owned the property and had owned it perhaps for some years prior to 1870. Prior to that time, however, a man by the name of W. Gr. Forbes claimed to own the thirty feet by purchase from Ketcham. He built a house upon the property and lived in it with his wife. Subsequently his wife died, and after her death he rented it. and subsequently sold it to Mr. Weber, the husband of the plaintiff, who went into possession of the property. It appeared that at the time Mr. Weber purchased from Forbes there was some balance still due to Mr. Ketcham, and Mr. Weber made payment or payments and received the title, not from Forbes, but direct from Mr. Ketcham, the deed having been dated in 1878.

The court charged in regard to the matter, and directed the jury 0that the dedication of the plat signed by Ketcham was binding upon the plaintiff, and she could not recover for the $87; and in that we think the court erred. Now, as I have said, Mr. Forbes was in possession of the property; claiming to be the owner, and we believe that was prima fade evidence that he was the owner. lie continued in that possession, and seems to have been in possession at the time proceedings were filed in 1875. The city of Toledo in filing a petition reciting the necessity of opening the street, etc., says: “The following described parcels of real estate are owned by the parties hereinafter named. ’ ’ In the third paragraph it says: ‘1 The northerly thirty feet of the N. E. one-half of lot 223 Stickney’s addition, which lies within the proposed line of Niagara street and owned by W. G. Forbes.”

The statute under which they proceeded requires them to give notice to the owners; and Section 2245, Revised Statutes, provides:

“The assessment shall be in writing, signed by the jury, and shall be so made that the amount payable to each owner may be ascertained either by allotting it to each owner by name, or on each lot or parcel of land. ’ ’

When the jury came to make their assessment they assessed to W. G. Forbes $87.50. It was said that Mr. Ketcham was a party to this suit; and that was true, but he was not named as the owner of this portion of lot No. 223, but Forbes was named as the owner; and Ketcham was named as to another portion of the lot which was alleged to be owned by V. H. Ketcham and Jerome Wellman, and that is the only place in which Mr. Ketcham is named, and when it came to that particular portion, they awarded to Ketcham and Wellman $87.50, and the city ascertained then that the ownership was in Forbes.

M. R. Brailey and John P. Manton, for plaintiff in error.

T. L. Gifford, for defendant in error.

Forbes, as the testimony showed, purchased this property prior to the date of 'the dedication and was in possession prior to that time and did not sign the articles of dedication. Mr. Ketcham, when he signed, signed generally, without naming any specific portion of the property, but simply signed his name.

We think the city is bound by this record in regard to the $87.50. It ascertained that Forbes was the owner and caused an award to be made to Forbes as the owner, and to no other person, and we think it is too late for the city to come in now and say that Mr. Keteham was the party who owned the property and that he is entitled to the money, and that the judgment of appropriation should be in his favor, or that the articles of dedication would bind Mr. Weber. We think there can be no question under the law, as we have stated it heretofore, that Mr. Weber, when he purchased this property and took this deed, took the whole title to the property and succeeded to the right of Forbes in the property and that he is entitled to this $87.50.

It is said in the petition that the city had not made any payments, but the city nowhere claims to have made any payment to Forbes or to anybody else for that property; it seems to have just cut the matter, so far as payments are concerned, when it came to open the street and claimed the whole property. In that view of the ease we think the court erred in holding that these plaintiffs were not entitled to this money. The case has been tried and we think we have all the evidence before us. With the evidence as it stands, we will reverse so much of the judgment as finds in favor of the'city in regard to the $87.50 and render such judgment as the court of common pleas should have rendered, and give judgment for Mrs. Weber for that sum of money. The details can be drawn out in the journal entry. The interest may be computed the same as in the other ease, and it may be so far modified as to include it all in one judgment.


author: Cook, J.

text:
    THE BEAL LAW CONSTITUTIONAL.
    [Before Judge John M. Cook, sitting in Guernsey County.]

    John Lloyd v. Joseph B. Dollisin, Sheriff.
    Decided, 1902.

      The Beal Law — Not in Conflict with Section 26 of Article II, or Section 18 of Article I, or Section 11 of Article III of the Constitution— Contains no Unlawful Discrimination — The Feature as to Sale by “Wholesale” — Jurors Taken from the Whole County — What Shall Constitute Prima Facie Evidence of Legal Election — Distribution of Fines.

    1. The provisions of Section 26 of Article II of the Ohio Constitution, that general laws shall have a uniform operation throughout the state, does not make it necessary that the law shall operate uniformly upon every person and every foot of territory within the state; and the fact that Sections 4364-20, et seq., known as the Beal Law, have no application to those portions of the state not within the limits of municipalities, does not bring them within this constitutional prohibition.
    2. Nor does the provision of the Beal Law, which permits of a resubmission after two years of the question of the sale of intoxicating liquors in a municipality, render it possible to suspend the law within the meaning of Section 18 of Article I of the Constitution, which provides that the Legislature alone can suspend laws.
    3. Nor is there an attempt to grant the pardoning power to the people, in contravention of Section 11 of Article III, by the permitting of a second election, for the fact that the second election was in favor of “the sale” would not absolve from an offense committed while the sale was prohibited.
    4. Nor is there any violation of Sections 1 and 2 of the Bill of Rights or of the Fourteenth Amendment of the Federal Constitution in the discrimination that is made between persons living within and without municipalities, and between manufacturers selling at wholesale and dealers; and the provision as to sales by wholesale incapable of execution because of its indefiniteness.
    5. There is no violation of the rights of one being prosecuted under this law in that he must be tried before a jury selected from the whole county, rather than from the municipality within which the offense was committed.
    6. It is clearly within the power of the Legislature to provide as to what shall constitute prima facie evidence that the election under this law was legally held.
    7. The disposition to be made of fines imposed has always been provided for by the General Assembly, as was done in connection with the Beal Law, and is a matter of no concern to one charged with violation of that law.

      Judge Cook was the only judge sitting at the hearing of this case.

   Cook, J.

In habeas corpus.

The objection made to the detention of plaintiff by the sheriff of Guernsey county is that the court has no jurisdiction for the reason that the act of the General Assembly by favor of which the affidavit was made is unconstitutional and that it is too indefinite and vague to be enforced. The act was passed April 3, 1902 (95 O. L., 87), and purports to take effect from the date of its passage and is known as the Beal Municipal Local Option Law.

A large number of objections are made by plaintiff: That it contravenes Section 26, Article II of the Constitution; that it contravenes Section 1, Article II; that it contravenes Section 18, Article I; that it contravenes Section 10, Article I; that it contravenes Sections 1 and 2 of'the Bill of Rights; that the word “wholesale” is indefinite and vague; that the fines are improperly disposed of; and other objections that will be noted.

The questions made principally respect the Constitution of our own state and must therefore be considered and determined in the light of the decisions of our own state, and but little assistance can be derived from the decisions of other states, as the Constitutions of the different states differ very materially in their provisions upon the questions involved.

The first two objections may be considered together. Section 26, Article II, provides:

“All laws of a general nature shall have a uniform operation throughout the state; nor shall any act, except such as relate to public schools, be passed, to take effect upon the approval of any other authority than the General Assembly, except, as otherwise provided in this Constitution. ’ ’

Section 1, Article II, provides:

“The legislative power of this state shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives. ’ ’

Sections 4364-20® and 4364-206, Revised Statutes (95 O. L., 87), are the sections of the Beal Law in controversy and provide as follows:

“ Section 4364-20®. That whenever forty per cent, of the qualified electors of any municipal corporation shall petition council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held in not less than twenty nor more than thirty days from the filing of such petition with the mayor of the municipal corporation or from the presentation of such petition to said council, which said petition shall be filed as a public document with the clerk of the municipality, and preserved for reference and inspection and which election shall be held at the usual place or places for holding municipal elections, and notice shall be given and the election conducted in all respects as provided by law for the election of members of the council of the corporation, so far as said law may be applicable. The result of such election shall forthwith be entered upon the record of the proceedings of the council of the corporation by the clerk thereof, and in all trials for violation of this act, the original entry of the record, or a copy thereof certified by the clerk of the corporation; provided that said record shows that a majority of the votes cast at said election was against the sale of intoxicating liquors as a beverage, shall be prima facie evidence that the selling, furnishing or giving away of intoxicating liquors as a beverage or the keeping of a place where such liquors are sold, kept for sale, given away or furnished, if such selling, furnishing or giving away or keeping such place occurred after thirty days from the day of holding the election, was then and there prohibited and unlawful.
“Section 4364-206. And if a majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage, then from and after thirty days from the date of holding said election it shall be unlawful for any person, personally or by agent, within the limits of such municipal corporation to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished, for beverage purposes, and whoever from and after the thirty days aforesaid in any manner directly or indirectly, sells, furnishes, or gives ■ away, or otherwise deals in any intoxicating liquors as a beverage, or keeps or uses a place, structure or vehicle, either permanent or transient for such selling, furnishing or giving away or in which or from which intoxicating liquors are sold, given away or furnished, or otherwise dealt in as aforesaid, shall be guilty of a misdemeanor, and shall on conviction thereof be fined not more than two hundred dollars nor less than fifty dollars for the first offense, and shall for the second offense be fined not more than five hundred dollars nor less than one hundred dollars, and for any subsequent offense be fined not less than two hundred dollars and be imprisoned not more than sixty days and not less than ten days. But nothing contained in any of the sections of this act shall in any manner affect the right of any manufacturer of intoxicating liquors from the raw material, to sell, deliver, and furnish his product in wholesale quantities to Iona fide retail dealers trafficking in intoxicating liquors or in wholesale quantities to any party or parties residing outside the limits of said municipality. ’ ’

Section 3 of the act provides:

“This act shall take effect and be in force from and after its passage. ’ ’

It is fortunate that these provisions of the Constitution have been before the Supreme Court regarding legislation of a similar character, and from these decisions we are furnished with much-light, if indeed the questions are not authoritatively settled. In Gordon v. State, 46 Ohio St., 607, the Supreme Court had before it what is known as the township local option law passed March 3, 1888 (85 O. L., 55).

Sections 1 and 2 of that act, which are Sections 4364-24 and 4364-25, Revised Statutes, provide as follows:

“Whenever one-fourth of the qualified electors of any township, residing outside of any municipal incorporation, shall petition the trustees thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such township and without the limits of any such municipal corporation, such trustees shall order a special election for the purpose, to be held at the usual place or places for holding township elections; and notice shall be given and the election conducted in all respects as provided by law for the election of township trustees; and only those electors shall be entitled to vote at such election who reside within the township and without the limits of any such municipal incorporation. A record of the result of such election shall be kept by the township clerk in the record of the proceedings of township trustees; and in all trials for violation of this act, the original entry of said record, or a copy thereof certified by the township clerk, provided that it shows or states that a majority was against the sale, shall be prima facie evidence that the selling, furnishing, giving away, or keeping a place, if it took place from and after thirty days from the day of the holding of said election, was then and there prohibited and unlawful.
“Persons voting at any election held under the provisions of this act, who are opposed to the sale of intoxicating liquors as a beverage shall have written or printed on their ballots ‘Against the sale; ’ and those who favor the sale of such liquors shall have written or printed on their ballots ‘For the sale;’ and if a majority of the votes cast at such election shall be ‘Against the sale, then from and after thirty days from the day of the holding of said election, it shall be unlawful for any person within the limits of such township and without the limits of such municipal corporation to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished; and whoever sells, furnishes or gives away any intoxicating liquors as a beverage, or keeps a place where such liquors are kept for sale, given away or furnished, shall be fined not more than five hundred dollars, nor less than fifty dollars, and imprisoned in the county jail not exceeding six months; but nothing in this section shall be construed so as to prevent the manufacture and sale of cider, or sale of wine manufactured from the pure juice of the grape, cultivated in this state, nor to prevent (a) legally registered druggist from selling or furnishing pure wines or liquors for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes; but this provision shall not be construed to authorize the keeping of a place where wine, cider or other intoxicating liquors are sold, kept for sale, furnished or given away as a beverage. ’ ’

Section 8 of this act provides, “This act shall take effect and be in force from and after its passage,” the same as the Beal Law.

It is difficult to make any distinction between this law and the one under consideration other than that law refers to townships outside of municipal corporations while the Beal Law affects all municipal corporations of the state. In Gordon v. State, 46 Ohio St., 607, and State v. Rouch, 47 Ohio St., 478, the Supreme Court in the syllabus, which is the law of the cases and by which we must be controlled, held:

“The act entitled, ‘An act to further provide against the evils resulting from the traffic in intoxicating liquors by local option in any township in the state of Ohio,’ passed March 3, 1888, is not in conflict with the Constitution and is a valid law. ’ ’

In those cases the precise questions made in this case and which we are now considering were submitted and determined and must be conclusive unless such distinctions in the two laws can be drawn as to make these decisions inapplicable. It is claimed in argument that there is a distinction between the act of March 3, 1888 (85 O. L., 55), and the one under consideration in this case, that municipal corporations differ from townships proper; and, further, that the question counsel makes in this ease was not presented in those cases, to-wit, that in order to make a law of a general nature have a uniform operation throughout the state it must operate upon all the people in the state and all the territory of the state. To use the language of one of the counsel in his argument, “it must act upon every person and every mile, acre and foot of the territory alike. ’ ’

It is true that here is a distinction between townships and municipalities, especially in their government; townships are governed ordinarily by laws emanating directly from the General Assembly, while municipalities are governed ordinarily by laws or ordinances made by the law-making power of the municipality, authorized by the General Assembly. But certainly what the General Assembly could authorize a municipality to do, it could do itself. It would be a strange anomaly that the agent could act by the authority of the principal and yet the principal could not act directly in the same manner in its own behalf.

By Section 6, Article XIII of the Constitution, it is provided:

“The General Assembly shall provide for the organization of cities and incorporated villages’ by general laws.”

In State v. Hawkins, 44 Ohio St., 98, 110, Minshall, J., in the opinion, says:

‘ ‘ The organization and government of cities is left, by the Constitution, to the General Assembly, with the requirement (Article XIII, Section 6) that it shall, by general laws, provide therefor; and the entire system of municipal government in this state has, in the exercise of this power, been created by the Legislature.”

Under this provision the General Assembly has at different times enacted laws providing that any municipal corporation shall have full power to regulate, restrain and prohibit ale, beer and porter houses and other places where intoxicating liquors are sold at retail, and such laws have uniformly been held to be constitutional. Burckholter v. McConnellsville, 20 Ohio St., 308; Madden v. Smeltz, 2 C. C., 168.

In Burckholter v. McConnellsville, supra, in the second paragraph of the syllabus it is held:

“It is no ground of objection to the validity of such municipal ordinances, when clearly authorized, that state legislation has not extended a similar prohibition over all parts of the state. It is for the law-making power of the state to determine within the limitations of the Constitution, to what extent city or village councils shall be invested with the power of local legislation.”

In the opinion Chief Justice Scott says:

“Morality, and good order, the public convenience and welfare, may require many regulations in crowded cities and towns, which the more sparsely settled portions of the country would find unnecessary.”

In Madden v. Smeltz, supra, it is held in the third paragraph of the syllabus:

“That the statute authorizing the passage of such an ordinance. is not in conflict with Article II, Section 26 of the Constitution of the state. ’ ’

In the opinion Albaugh, J., says:

“It is also claimed that the act under which the ordinance was passed is inhibited by Article II, Section 26 of the Constitution which provides that ‘all laws of a general nature shall have a uniform operation throughout the state.’ Legislation upon the subject of regulating, restraining and prohibiting the sale of intoxicating liquors, has been held to be of a general nature, and should have a uniform operation throughout the state. Legislation upon the subject of regulating, restraining and prohibiting the sale of intoxicating liquors, has been held to be of a general nature, and should have a uniform operation throughout the state. The general authority conferred upon municipal corporations by this statute to regulate, restrain and prohibit the keeping of ale, beer and porter houses, and other places where intoxicating liquors are sold, etc., has a general application to all such corporations within the state, and therefore does not partake of the local character that is restricted by this section of the Constitution.”

It would therefore seem that if legislation upon the subject of intoxicating liquors may be distinguished as it respects the state at large and municipalities, that laws of general nature might have a uniform operation when applied to municipalities when they would not when applied to portions of the state outside of municipalities. Certainly no good reason can be assigned why laws of a general nature applicable to municipalities would not have a uniform operation when the same law would have a uniform operation when applied to townships outside of municipalities, and we must hold that Gordon v. State, supra, is applicable to the statute under consideration.

It is said that the question made by counsel in this ease was not made in Gordon v. State, supra, to-wit, that to have a uniform operation throughout the state the law must apply to every person within the state and to every foot of territory of the state, whether within or without municipalities, and it is strenuously insisted by counsel that, if that question had been presented, the decision would have been against the constitutionality of the law. Counsel say that in this case, in the opinion rendered by Dickman, J., that wherever he speaks of the township he always refers to the whole township, using the language “any township,” “every township.” The provisions of the act are bounded only by the limits of the state,” etc. And they infer from the language that it never entered into the mind of the learned judge that the act under consideration only pertained to that part of the different townships lying without the limits of municipal corporations. It would be strange indeed that all the learned counsel in the case, and all the judges deciding the case, should overlook this important element of the controversy, and especially is this so when the same act was again before the Supreme Court in State v. Rouch, 47 Ohio St., 478, in which Spear, J., says:

“In Gordon v. State, 46 Ohio St., 607, the township local option act was attacked as unconstitutional on the ground that the act is of a general nature, and has not a uniform operation throughout the state; also, that it is a delegation of powers to the people. * * * In. all these respects the act was held by the court not to be obnoxious to the objection urged, and to be valid.”

Is it necessary that legislation of a general nature, in order to have a uniform operation throughout the state, must affect every person within the state and every foot of territory within the state, as claimed by counsel? If so, very much of the important legislation of the state and specially upon the subject of intoxicating liquors would be swept from the statute of the state. Laws prohibiting the sale of intoxicating liquors within a certain distance of agricultural fairs, religious societies, children’s homes, soldiers’ homes, colleges, etc., would all be unconstitutional.

Do the words “uniform operation throughout the state” necessarily have such broad signification? Webster defines “throughout” primarily, “quite through;” “from one extremity to the other of.” Certainly no such interpretation of the words as counsel has placed upon them has been entertained by our Supreme Court.

In Heck v. State, 44 Ohio St., 536, it was held:

“The clause, ‘whoever sells intoxicating liquors within two miles of the place where an agricultural fair is being held * * * shall be fined,’ etc., contained in Sec. 6946, Rev. Stat., as amended May 2, 1885 (82 O. L., 222), includes sales made by one whose place of business is permanently located within such distance, and is not in conflict with any provision of the Constitution, and is a valid law.”

In the opinion, Minshall, J., says:

“It is also argued that the law is not uniform in its operation because it applies to the liquor dealer whose place of busines is just within, and does not apply to the one that is just without the prescribed limit, and is, therefore, in conflict with Section 26, Article II of the) Constitution. Is this tenable? Laws made applicable to cities and villages of a certain grade and class have been sustained time and again by the court, although they do not apply to those of another grade and class. A law is general and uniform that applies to all persons and things coming within its provisions throughout the state. Its uniformity consists in the fact that no person or thing, of the description of any person or thing affected by it, except from its operation.
„“The language of this law is general, and applies with uniformity to every person engaged in the business of selling intoxicating liquors within two miles of any place where an agricultural fair is being held.”

In Gordon v. State, supra, Dickman, J., uses this language:

“By the Municipal Code of May 7, 1869, Section 199, it was declared that all cities and corporated villages should, among other things, have the power, and might provide by ordinance for the exercise of such power ‘To regulate, restrain and prohibit ale, beer and porter houses or shops; and houses and places of notorious or habitual resort for tippling or intemperance. ’ The uniformity in the operation of this law. of general nature was not measured and fixed by the number of cities and incorporated villages that might exercise the granted power. One or many might, like the village of MeConnellsville, pass the needful ordinances, but the provision of the code was none the less uniform operation throughout the state. The feature of uniformity in the local option law under consideration would no more be marred because the qualified electors of the townships generally fail to adopt its provisions, than the above enactment of the Municipal Code would have ceased to operate uniformly, because cities and incorporated villages did not generally pass ordinances to prohibit ale, beer and porter houses. ’ ’

In Senior v. Ratterman, 44 Ohio St., 661, 678, Spear, J., uses this language:

“Nor is the proposition tenable that the law being of a general nature is not of uniform operation throughout the state, and for that reason repugnant to Section 26 of Article II of the Constitution. True, the law is of a general nature and does discriminate between the general dealer and the manufacurer. It requires the one to pay, and the other, where the sales are of one gallon and over, is exempted. This implies a division of the two into separate classes, but does not show that because of that fact the law is not of uniform operation. The principal of uniform operation requires simply that the law shall bear equally in its burden upon persons standing in the same category. A law is uniform in its operation where every person who is brought within the relation and circumstances provided for is alike affected by the law. It must have a uniform operation -upon all those included within the class upon which it purports to operate. It is not claimed that the law does not purport to operate equally upon all wholesale dealers who are not manufacturers. As between the wholesale dealer and the manufacturer there is manifestly a real tangible difference, though they have characteristics in common. The General Assembly has chosen to classify and to discriminate accordingly. If the classification is proper the discrimination can not be objected to. We are not prepared to say that the classification is not warranted. ’ ’

There is no doubt but what the Supreme Court has somewhat receded from its previous opinions as to what legislation comes within Section 26, Article II of the Constitution and will eventually hold, if it has not already practically held, that legislation only affecting grades and classes of cities and villages is prohibited by Section 26, Artele II. Yet it is doubtful if the pendulum will swing so far back as to make legislation of the character in controversy, applying to all municipalities, unconstitutional under that article and section; certainly it has not yet done so and it would be presumptious for a judge of a lower court to assume that it will do so.

As to the referendum clause of the act, which provides that an election shall be^held and the qualified electors determine when the law should be enforced, it is sufficient to say that question was fully considered and determined in Gordon v. State, supra, that clause being the same in both acts. Dickman, J., in the opinion, says, p. 630:

“But it is further contended that the act is a delegation of legislative power to the people, and therefore in contravention of Section 1, Article II of the Constitution. That section provides that the legislative power of the state shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives. It is a general rule that the agent whose employment and trust are personal, can not, without express and implied authority from his principal, delegate his power. And it is a settled maxim that when the people, in their sovereign capacity, have by the Constitution conferred the law-making power upon the Legislature, that department can not delegate such power to any other body. The power must remain where located, and laws must be enacted through the established agency, until there is a change in the Constitution itself. Yet, while the principle may be universally. recognized, that the Legislature can not evade its constitutional trust as the law-making agent, difficulty may arise in determining, whether by any special act the Legislature has, directly or indirectly, sought to divest itself of its constitutional authority and obligation. The natural tendency of the legislative department is to encroachment, and we may well be inclined in the first instance to question whether it has relinquished any portion of its power.
“In the exercise of the duties devolved upon the legislative branch of the state government, it is manifest that discretion and judgment are required, not only in determining the subject matter of legislation, but not unfrequently in ordering the conditions or contingencies upon which laws are to be carried into effect. It may be deemed expedient in one case to provide for preliminary action before a law is executed, which under other circumstances would not be adopted. In requiring such proceedings prior to the enforcement of a law, the Legislature need not be prevented from keeping within the strict line of its authority.
“It is evident, we think, that the act whose constitutional validity is called in question was a complete law when it passed through the several stages of legislative enactment, and derived none of its validity from a vote of the people. In all its parts it is an expression of the will of the Legislature, and its execution is made dependent upon a condition prescribed by the legislative department of the state. By its terms it was made to take effect from and after its passage. The qualified electors derived their authority to petition the trustees, and the trustees obtained their authority to order a special election directly from the Legislature. The right of the electors to register their votes for or against the sale of intoxicating liquors is conferred by the same body. If a majority of the votes cast at such election should be against the sale, the traffic in intoxicating liquors is thereby prohibited and made unlawful, by virtue of the act of the General Assembly, which may at once, if a change should come over the legislative will, repeal the law and avoid the result of the election. So far from the vote of the electors breathing life into the statute, it is only through the statute that the electors are entitled to vote at the special election. While they are free to cast their votes, the consequence of their aggregate vote is fixed and declared by that act of the Legislature. The penal sanction of the act is subject to no modification by the action of the electors, and it is an elementary principle that ‘the main strength and force of a law consists .in the penalty annexed to it. Herein is found the principal obligation of human laws’ (1 Black Com., 57). In some of the authorities which we have examined the idea is prominent, that when the voters are called on to express by their ballots their opinion as to the subject matter of the law, they declare no consequence, prescribe no penalties and exercise no legislative functions. The consequences, it is said, are declared in the law, and are exclusively the result of the legislative will.”

The citation of these authorities conclusively show that counsel for plaintiff are wrong in their first two objections to the constitutionality of the law which constitute their main contention.

There are several other objections that should be noticed. It is claimed thatdhis law contravenes Section 18, Article I of the Constitution, in the provision that at any time after two years another election may be held, and if a majority decide in favor of the sale of intoxicating liquors, then the law is suspended ; and this provision of the Constitution is violated which provides that “no power of suspending laws shall ever be exercised except by the General Assembly.”

Not so. The law is in no manner suspended; it still continues in full force. As we have seen, it was in full force and effect after its passage before any election was held. The election simply provided for its enforcement. And the second election is the mere expression of the opinion of the electors that they do not longer desire it to be enforced. If the law went into effect immediately after its passage and before the first election, as was decided in Gordon v. State and Santoro v. State, supra, certainly the second election would not suspend the law.

While this distinct' question was not passed upon in Gordon v. State, supra, a similar question was presented. Messrs. Ferguson, Johnson and Retallic, in their brief, make one of the grounds of objection to the constitutionality of the law “that it authorizes the people to suspend or repeal a law, to-wit, the Dow Law.” The judge in his opinion did not refer to this question. Possibly he considered it not of sufficient importance.

It is also said it contravenes Section 11, Article III, in this, that it grants unto the people the pardoning power by permitting a second election. The result of the second election, although it might be in favor of “the sale,” would not absolve from any offense previously committed when the sale is prohibited.

Again, it is claimed that the law is in violation of Section 10, Article I of the Constitution in this, that it does not afford the party accused the right to have “a trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The theory of counsel is that in a case of this character the jury sh.ould only be selected from the municipality where the law is violated, while the law permits the jurors to be selected from the body of the county within and without the municipality. It is true the offense can only be committed within the municipality; nevertheless it is committed within the county, and the jury is selected from the county. It is a little difficult to' see how it differs from any other offense committed in the county. If the party was charged with larceny committed within the municipality, he could be tried by a jury impanneled from the body of the county. Simply because this offense can only be committed within the municipality could make no difference. No authority is referred to. Many persons have been convicted for selling liquors within the prescribed limits of agricultural fairs, colleges, etc.; also for violation of the township local option act, and this question does not seem to have been before raised; and the practice having been so long continued without objection, raises a strong presumption of the validity of the law.

It is claimed that the law violates Sections 1 and 2 of the Bill of Rights and the Fourteenth Amendment of the Federal Constitution in this, that it discriminates between parties living within and without municipalities and between manufacturers and dealers.

As a general proposition all the people of the state should have the same rights and privileges and be subject to the same burdens and penalties; but the subject matter of legislation must be considered. When Lord Palmerston was home secretary under Lord John Russell, he proposed to the ministry that a bill should be introduced in parliament repealing all laws discriminating against the sale of malt liquors. He insisted that he could see no reason under the law how its sale could be legally restricted any more than that of molasses. The premier answered, “My lord, the reason is apparent. One is beer and the other treacle,” and declared that such a bill could not receive the support of the government as then constituted. It has been determined again and again by our Supreme Court that the General Assembly might prohibit the traffic in intoxicating liquors entirely. It is said by McIlvaine, J., in State v. Frame, 39 Ohio St., 399:

“If, in the judgment 'of the General Assembly, it be necessary, in order to prevent evils resulting from the traffic, that the sale and use of intoxicating liquors as a beverage be absolutely prohibited, we can see no constitutional ground upon which such exercise of its judgment and discretion can be reviewed. ’ ’

If it can be prohibited, it can be restricted, and the place, amount and manner of sale may be determined. If, in the judgment of the General Assembly, the traffic should not continue within municipalities, then it may discontinue it, and no one within the municipality must engage in the traffic. If, in the judgment of the General Assembly, the manufacturer may engage in the traffic under certain restrictions, by selling in quantities and to persons described in the act, and all persons not manufacturers may not do. so, then it may so determine (Senior v. Ratterman, supra). It is a question for its judgment and discretion to determine under Section 18 of the schedule to the Constitution what are the best means to provide against the evils resulting from the traffic. Upon this theory are all the laws we have now and ever had relating to the subject, much of which legislation has already been referred to. Certainly no one can complain that he is discriminated against by not being permitted to engage in the traffic which the organic law of the state recognizes as an evil and which the highest court of the state has declared may be prohibited altogether.

As said in Gordon v. State, supra, so often referred to:

“When the General Assembly was clothed with authority by the Constitution to provide by law against the evils resulting from the traffic in intoxicating liquors, it was left to its discretion — subject to such express limitations as the Constitution imposed — to select the means whereby the evils might be avoided. The Legislature, in the plentitude of its discretion, having determined upon the methods of providing against such resulting evils, it would not be for the judicial branch of the state government to interfere.”

It is again claimed that the statute is so defective in its provision that it can not be properly executed, and therefore has no validity in law. This'claim is founded upon the clause which provides that the manufacturer may sell in wholesale quantities. The inquiry is made, what is a wholesale quantity? Plow shall it be averred in -the indictment and who shall determine it, the court or the jury? This objection might be disposed of by saying that plaintiff has no interest in the determination of this question, he not being charged as a manufacturer selling at wholesale, and therefore no concern of his (Van Wert v. Brown, 47 Ohio St., 477). An act, though not clear and definite, though vague and uncertain as to its method of enforcement, may nevertheless be valid. It will not be declared void because it is difficult of execution. A law may be imperfect in its details, yet it is not void unless it is so imperfect as to render it impossible to execute it. Cochran v. Loring, 17 Ohio, 409, 427; Gordon v. State, supra.

Tested by these rules, is the act void upon this ground ? ■ Many acts of the General Assembly have provisions that are not clear and definite and have only been made so by judicial determination. This applies to criminal as well as to civil acts. In the act defining burglary, what is night season? What is it to forcibly break and enter; what is other building? These words have been made clear by judicial determination. Many similar cases might be cited. The word “wholesale” is not a word of difficult interpretation, and the court would have no trouble in determining its meaning. It may have a definite and determinate signification, as used in this act, and needs no interpretation. In State v. Rouch, supra, it was held that the local option act and Dow Law should be construed together and as a part of the same general subject, and, where necessary to a clear understanding of either, are to be construed together. The Dow Law fixes the quantity which a manufacturer may sell, at one gallon or more, and such no doubt was the intention of the General Assembly in the use of the word “wholesale” in this act.

Objection is also made that the law provides as to what shall constitute prima facie evidence of the fact that the election was legally held. It is certainly within the power of the General Assembly to provide as to the quantum of proof necessary and as to what shall constitute proper evidence. The proceeding in courts, criminal and civil, in all its stages, is the subject of legislation, and is controlled only by the inhibition of the Constitution, and we know of no provision of the Constitution which prohibits the General Assembly from determining what shall be sufficient evidence prima facie or conclusive in actions subsequently arising.

Objection is also made to the section making disposition of fines collected. That also is a matter of no concern to plaintiff. What difference is it to him whether the fine, if one is assessed against him, be paid into the county or municipal treasury? This section provides, as we understand it, that when the fine is imposed by a magistrate within the municipality where the traffic is prohibited, it shall be paid into the municipal treasury. Disposition of fines has always been provided for by the General Assembly. Sometimes they are paid into one fund, sometimes into another, and sometimes a part or even a whole is ordered paid to an informer. Section 6802, Revised Statutes, provides that all fines shall be paid “into the treasury of the county in which such fine was assessed “unless otherwise required by law. This act requires that under certain circumstances the fines shall be paid into the municipal treasury.

As before stated, a large number of objections have been made by distinguished counsel on both sides, all of which we believe have been referred to; justice to counsel seemed to require that. On both sides the arguments and briefs show that a great amount of labor has been bestowed upon the case, and we have received invaluable assistance from the arguments and briefs. The conclusion to which we have arrived we consider the only one to which we could come. With the propriety or wisdom of the law we have nothing to do. From the decisions of our Supreme Court, as they now are, the law must be held to be constitutional. We should add, as stated by Chief Justice Marshall, “that a law should not be declared unconstitutional without a clear and strong conviction of the incompatability of the Constitution and. the law.” This would particularly apply to an inferior court, and more especially where but one judge of that court passes upon its constitutionality. The plaintiff will be remanded to defendant, sheriff of Guernsey county.

R. M. Nevin, F. S. Monnett and James Joyce, for petitioner.

W. B. Wheeler and A. L. Stevens, for respondent.