author: WINCH, J.

text:
    GAMING AND GAMBLING — LIMITATION OF ACTIONS.
    [Cuyahoga (8th) Circuit Court,
    June 15, 1906.]
    Winch, Henry and Marvin, JJ.
    *George H. Burrows, Assignee, v. Lura Hussong.
    1. Suit for Recovery of Money Lost Gaming against Assignee of Defendant-Barred if, not Brought within Six 'Months’ of Loss.
    Section 4270 Rev. Stat. providing that a loser may, within six months thereof, sue for and recover money lost at gaming, is a statute of limitations; hence, having allowed more than six months to elapse before bringing suit for money so lost, plaintiff is barred from prosecuting suit therefor, notwithstanding defendant had made an assignment for creditors and presentation of the claim is made to the assignee within six months of such loss.

      2. Pkesentation of Claims to Assignee does not Abkest Running of Statute of Limitations.
    Mere presentation of a claim to an assignee for allowance under Sec. 6352 Rev. Stat. does not prevent a statute of limitations from running.
    Error to Cuyahoga common pleas court.
    Burrows & Mason, for plaintiff in error:
    Cited and commented upon the following authorities: Estill v. Fox;23 Ky. (7 Mon. T. B.) 552 [18 Am. Dec. 213]; Woodson v. Gordon, 7 Tenn. 196 [14 Am. Dee. 743]; Ellmore v. Hoffman, 2 Ashm. (Pa.) 159; Commonwealth v. Bennett, 16 Serg. & R. (Pa.) 243; Cooper y. Rowley, 29 Ohio St. 547; Hoss v. Layton, 3 Ohio St. 352.
    H. M. Bull and W. C. Rogers, for defendant in error:
    Cited and commented upon the following authorities: 14 Enc. Daw (2 ed.) 625; Meech v. Stoner, 19 N. Y. 26; McDougall v. Walling, 48 Barb. 364; Collins v. Ragrew, 15 Johns. 5; 8 Ene. Law (2 ed.) 239, 247; Davis’ Appeal, 39 Conn. 395; Bump, Fraud. Convey. (3 ed.) 508; Cannon v. Cheney, 4 Cire. Dec. 335 (8 R. 143) ; affirming, Chaney v. Cannon, 1 O. S. U. 440 (35 Bull. 313) ; Rogers v. Edmund, 12 Circ. Dec. 291 (21 R. 655) ; 1 Bates’ Pleadings 444; Rice v. Farnham, 4 Dec. 217 (7 N. P. 189) ; Cooper v. Rowley, 29 Ohio St. 547; Perry, Trusts Sec. 863, 864; Bettman v. Hunt, 9 Dec. Re. 396 (12 Bull. 286).
   WINCH, J.

Lura A. ITussong brought her action in the common pleas court to compel George H. Burrows, as assignee for the benefit of the creditors of the firm of Johnson, Walther & Co., to allow her alleged claim against said estate.

In her petition she sets forth that the partnership was indebted to her for money had and received to her use, won of her at gaming by said partnership and by her paid to them between October 25, 1904, and April 17, 1905, inclusive, whereby an action accrued to her under the statute against gaming.

She further shows that said partnership made an assignment to plaintiff in error on May 27, 1905; she presented her claim to the assignee on June —, 1905; he rejected said claim December 13, 1905, and thereupon she filed said petition on January 11, 1906.

To this petition the defendant filed a general demurrer, which was overruled, judgment entered against him, and the case is here on error.

The character of plaintiff’s claim is to be determined by an examination of the statutes against gaming, referred to in her petition. They are found in the revised statutes as Sec. 4269s to 4276 Rev.' Stat., inclusive.

Section 4269 provides that all gaming contracts are void.

Section 4270 provides that if any person, by means of any bet or wager, loses to any other person any sum of money and pays the same to the winner, the person who so loses and pays may, at any time within six months next after such loss and payment, sue for and recover the-money by civil action.

This is a statute of limitations and we hold that the loser, as such, cannot recover the money lost, after six months.

The plaintiff below having allowed more than six months to elapse after she lost the money before she began her suit, was barred from prosecuting the remedy provided for her under Sec. 4270, and this is so, notwithstanding she presented her claim to the assignee within six months, as he never allowed said claim.

Section 6352 Rev. Stat. regulates the presentation of claims to an assignee and their allowance or rejection by him, but it does not specifically provide that any statute of limitations shall be arrested by the mere presentation of a claim to him. Of course, should he approve the claim, the statute would cease to run against it. In this case he never approved the claim, but having considered it for a time, he finally rejected it. The situation is the same as though the claim had been presented to the assignee, but suit not brought until after the six months mentioned in Sec. 4270.

See Wood, Limitations Sec. 6, and cases there cited.

But it is said that plaintiff is entitled to maintain her action under favor of Sec. 4273 of the gaming act, which provides that:

“If the person losing such money or thing of value as provided in section 4270 does not, within the time therein specified, without collusion or deceit, sue, and with effect prosecute, for the money or thing of value so lost and paid or delivered, any person may sue for and recover the same, with costs of suit, against any winner, as aforesaid, for the use of the person prosecuting the same.”

In the case of Cooper v. Rowley, 29 Ohio St. 547, the Supreme Court held that the remedy provided by this section is for a penalty or forfeiture, accrues at the expiration of the six months limited in Sec. 4270 .and is.barred in one year thereafter.

“Nor is its character affected by the circumstances that the loser of the money wagered, is the party suing. He is permitted to sue, not from having any legal claim to the fund in virtue of once owning it, but because he is included im the comprehensive class authorized to ¡maintain the action. ’ ’

If this right to sue for a penalty did not accrue until six months after the money was lost, it did not come into existence until after the assignee qualified. When it did come into existence it belonged to each citizen and the plaintiff’s rights were no better than those of every other citizen and the only way she could segregate her right was to bring her suit, which she finally did. That suit she could maintain against the assignors, for the assignment did not preclude her from suing the firm, but she never had a claim against the assets in the hands of the assignee and we hold that he should not now be compelled to allow it.

The case of Estill v. Fox, 23 Ky. (7 Mon. T. B.) 552 [18 Am. Dec. 213], is interesting in this connection.

' Counsel for defendant in error argues that her claim is in the nature of damages for a tort committed before the assignment, with action brought after the assignment and that therefore it is a claim against the estate, but we view the action as one for the recovery of a fine.

Should a man be guilty of a misdemeanor before his assignment and be arrested, convicted and fined afterward, there would be no debt in favor of the state until the fine .was assessed, and in such case no one would urge that the debt related back to the time when the crime was committed. Such is the case also where the fine is recoverable by an informer, as in this case, but is assessed as a penalty.

This conclusion is not inconsistent with our ruling in Pentz v. Burrows, 28 O. C. C. 490 (8 N. S. 349). That case was brought by the-loser to recover the money lost within six months: This case was brought for a penalty after the six months.

The demurrer to the petition should have been sustained, and for error in overruling it, the judgment is reversed.

Henry and Marvin, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    CONSTITUTIONAL LAW — OFFICERS—SCHOOLS.
    [Hamilton (1st) Circuit Court,
    March 6, 1909.]
    Giffen, Swing and Smith, JJ.
    State ex rel. S. B. Marvin v. John M. Withrow.
    1. Cincinnati School Board Law Unconstitutional.
    Section 3897 Rev. Stat., as amended by act 99 O. L. 585, purporting to change the membership of boards of education in cities of over fifty thousand persons, but in effect applicable only to one of the class, is unconstitutional and void, as being general in character and not of uniform operation.
    2. President of Board of Education Holds Over Until Successor Qualifies.
    A president of a board of education, performing duties under Secs. 3974, 3980, 3982, 3983, 3984 Rev. Stat., other than presiding at meetings of the board, is an officer within the meaning.of Sec. 8 Rev.- Stat., and holds over until his successor is regularly chosen and qualifies.
    3. Officer Entitled to Hold Over. Until Successor is Legally Selected and Qualified not Estopped to Deny Right of Another Elected and Qualified Under an Unconstitutional Law.
    One regularly chosen and qualified as president of a board of education under a constitutional law is not estopped to assert his right to hold over until his successor is regularly chosen and qualified; the fact that another is elected and qualified under an unconstitutional law and has entered upon its duties, Tinder a belief of its validity by both claimants, indicates no intention on the part of the former to abandon his right to hold- over or acquiesce in the claim of the other.
    [Syllabus approved by the court.]
    Quo Warranto.
    S. M. Johnson and William Thorndyke, for plaintiff.
    Worthington & Strong, for defendant.
   SWING, J.

This is an action in quo warranto.

The fact's which are decisive of the issues are not in dispute. Section 3897 Rev. Stat. passed in 1904, provided that in city school districts the board of education should consist of not less than two members nor more than seven members elected at large, and not less than two nor more than thirty members elected from subdistricts. It further provided that in cities containing a population of less than fifty thousand the board of education should consist of not less than three members nor more than seven members elected at large.

Under the provisions of this act, the five cities of this state having a population of over fifty thousand had, at the time this aet was .amended, May 9, 1908, boards of education constituted as follows:

CITY SCHOOL BOARDS. AT LARGE. SUB-DIS.
Cincinnati .............................. 3 24
Cleveland ..........■............. 5 2
Columbus ....................... 3 12
Toledo ......................... 3 2
Dayton ........................ 2 10

This act was amended May 9, 1908 (99 O. L. 585). By this amendment .it is provided that in city school districts the board of education shall consist of'not less than three nor more than seven members elected at large, -provided that in cities having a population of more than fifty thousand persons the board shall consist of not less than two nor more than seven members elected at large, and of not less than two members, nor more than twelve members elected from subdistricts. By this act the members to be elected at large from cities is changed from “not less than two to not more than seven at large” to “not less than three to not more than seven,” with a.proviso that in cities of more than fifty thousand it should consist of not less than two nor more than seven members at large.and not more than twelve members from subdistricts. Cities of more than fifty thousand are thus brought within the proviso, whereas in the former act cities of less than fifty' thousand were brought within the proviso. It is further provided in the act as follows:

“Provided further that whenever the number of members of the board of education in the school districts of cities which at the last or-any subsequent federal census may have a population of more than fifty thousand persons is changed under the provisions of this act, then such board of education' shall consist of not less than three members nor more than seven members elected at large by the qualified electors of such city school district.”

The effect of this act was to change the board of education in Cincinnati and not in the other four cities in the same class. It deprived the city of Cincinnati from having in its board of education any members from subdistricts, and required the board to have at least three members at large instead of two members at large, which the other cities might have, and which the city of Dayton-now has. The act, therefore, does not operate uniformly throughout the state in cities within the same class, and the uniformity is destroyed by force of the terms of the statute, and not by the discretion lodged in the cities themselves.

. Nor does this act bring Cincinnati within the provisions of the statute. applicable to' cities under fifty thousand persons — for the board created by this act .contains members at large who. were not elected by the qualified electors ;of the city at large, but members.at large who were elected from subdistricts and who became members at large by being chosen by lot. The result is that this act applies only to the city of' Cincinnati. That it was intended by the legislature to apply only to the* city of Cincinnati is certain by the terms of .the act when considered in connection with the facts that existed at the time in the' different cities, of the state. If there eould possibly be any question as to this, it is quickly dispelled by reading the house and senate journals at the time of the-passage of the act.

Having arrived at this conclusion, little else need be said; nothing byway of argument — for it is now settled law of this state that a law of" this character is a law of a general nature and must have a uniform operation throughout the state, as required by Art. 2, See. 26 of the constitution.

The Supreme Court of the state having so frequently declared such attempts to violate this wise.provision of the constitution to be invalid, it seems somewhat strange that this law was enacted.

It is urged that the office of president of the board of education is. not a public office, and therefore Sec. 8 Rev. Stat., which provides that any one holding an office or public trust shall continue therein until his.-, successor is elected or appointed- or qualified, does not apply to the relator, his term of office having expired January 1, 1909.

We think, however, that the office of president of the board of education is an office coming under this section. Under Secs. 3974, 3980, 3982, 3983 and 3984, the president performs other duties besides acting as, presiding officer at the meetings of the board, and by virtue of his office he performs for the state the important office of executing deeds for real estate, and being the custodian of the bond of the clerk. It would-seem to be an office under the holding of the Supreme Court in the case of' State v. Anderson, 45 Ohio St. 196 [12 N. E. Rep. 196].

It is further urged that the relator has estopped himself by his conduct in participating under the law in the reorganization of the board. We think this proposition- cannot be maintained. Mt. Vernon v. State, 71 Ohio St. 428 [73 N. E. Rep. 515; 104 Am. St. Rep. 783], and the leading case of Turnipseed v. Hudson, 50 Miss. 429 [19 Am. Rep. 15].

It is unfortunate, to say the least, that the affairs of this important. board should be placed in this confused condition, and, while we regret it, it is not within our judicial power to prevent it.

It is urged that if the law of 1908 is unconstitutional the law of' 1904 is also unconstitutional, but we are not inclined to hold 'that the law of 1904 is unconstitutional. The law is general in character, and, so far • as the terms of the law are concerned, operates uniformly throughout the state. The discretion lodged in the cities as to the number of the members' constituting.' the board, does not’ destroy the uniformity of its operation.

If we are correct in our conclusions, it follows that the relator is entitled to the office.

Decision on Rehearing.

This case was heard and decided, and on motion for a new trial full time was given for oral argument, and additional briefs have been submitted on both sides. This is justified when the great importance to the public of the question involved is considered.

Before proceeding to a decision of the question at issue the court desires to say, that at the conclusion of the oral argument at- the former hearing and the submission of .briefs, the court did not understand that further briefs were to be submitted and the decision of the case postponed on that account. The court deemed the case of great importance to the community, and that an early determination by the court of the ease would be desirable, especially as the legislature was about to adjourn, and if the court found any defects in the law such defects might be corrected by the legislature before adjournment. With this idea in view the court immediately took up the case and considered if, and the result was the decision heretofore announced. The decision was reached before the additional brief of the relator was handed in.

In our former decision we thought the question raised, that the relator could not be heard in this action by reason of his conduct, was settled by the decision of Turnipseed v. Hudson, 50 Miss. 429 [19 Am. Rep. 15]. It seemed to us to be directly in point, and that it had the sanction of our own Supreme Court as correct law on the question that it did decide, and therefore we contented ourselves by simply saying that the question was determined by that case; but it is urged with much learning and ability by the learned counsel for the defendant that Turnipseed v. Hudson is not the leading case on the subject, and that it is not in point in this case.

This question is discussed by counsel under the heading “Acquiescence. ’ ’

In Herman, Estoppel & Res Judicata, in Chap. 12, Estoppels in Pais and Equitable Estoppels, at Sec. 776, the author says:

“ If a person having a right and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the net and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. This is the proper sense, of the term “acquiescence” and in that sense it may be defined “quiescence” under such circumstances as assent may be reasonably inferred from it, and is no more than an instance of the laiv of estoppel by ivords or conduct.”

The decisions in which this term is mostly found are those in cases involving rights to land. We have only found one case in the English cases in quo warranto where this term is used. (There may be many others, however, as we have made no extended search.) It is the case of The King v. Dawes, 1 W. Bl. 634. Lord Mansfield in deciding that case says:

“Therefore, upon these grounds, taken jointly and not separately (1) the behavior and long acquiescence of the informers knowing the disqualification, and (2) the motive of informers for now moving.it, and (3) the probable consequences to the borough of granting this information, we are all of opinion that it would be contrary to the trust reposed in this court by the statute of Queen Anne for quickening the amotion ■of usurpers to permit these informers to have the assistance of the court in this case thus circumstanced.’'

The “long acquiescence” in this case was from 1753 to 1767.

In the other English eases to which we havé been referred the rule of law that there obtains, we think, is fairly stated by Lord Denman in the case of The Queen v. Greene, 42 E. C. L. 760, as follows:

“I am of the opinion that the objection here taken is good. It is not necessary to scan particular cases. The principle is that he who has concurred in inducing a party to exercise an office cannot be heard in this court on an application to turn him out of the office.”

Williams, J., in the same case says:

‘ ‘ If Brassington, knowing the supposed irregularity in this election, •still administered the declaration without which Greene could not act, he cannot now complain that Greene is acting.”

It cannot be claimed that Marvin knew that this law was invalid. His conduct was brought about by the terms of the statute, and Withrow took the office, not by reason of the conduct of Marvin, but because as he thought the law authorized it, and which he still claims is. authorized by it and which he claims is valid.

It is not necessary to set out the facts in Turnipseed v. Hudson, nor to refer to the different propositions contained in the syllabus. The force of the argument on which the decision rests is found in the latter part of the decision and is as follows:

‘‘The true rule is a case like the one before the court would seem to be that in order to create a vacancy the party must permanently disable himself from performing the duties of the office, either by himself or deputy, or he must by acts and declarations manifest a clear intention to willfully abandon the office and its duties, an intention not shown by the record.

“Holding the order of the board of supervisors declaring a vacancy in the office in dispute standing alone unacted upon, to be nugatory, this cause is narrowed down to the single question, whether the delivery by the respondent was a resignation by implication so as to create a vacancy. No determination on the part of the relator to abandon the office, in any sense of that term within the authorities, is manifest. On the contrary he did not desire to vacate. It is apparent that he was deluded by the unwise and illegal statute. * * *

“In view of this discussion the case at bar may be summed up thus: that both parties acted under a delusion caused by what proved to be an illegal statute and a void election; that Hudson acted upon no representation express or concealed of Turnipseed, but upon the statute referred to; and that the relator delivered the office to the respondent, not from a desire purposely or willfully to abandon the office and its duties, but in obedience to a law of the legislature, approved by the governor, and its enforcement threatened by the local district attorney. When the act which has caused this litigation was declared unconstitutional, the relator demanded of the respondent a restoration of the office to which, upon the record and the authorities as they are understood, he was legally and equitably entitled.”

It can scarcely be claimed in the case at bar that the defendant was induced to take the office in controversy by any representations made by the relator, or that the relator did anything other than manifest a desire and willingness to comply with the act of the legislature, which no doubt at the time he believed and had a right to believe was a valid act. No intention to abandon the office is shown by the relator, and there is a total lack of evidence tending to show that he either induced or tried to induce the defendant .to accept the office, either through representations express or implied. If these elements are lacking in the case, it is difficult to see wherein the relator has estopped himself by this conduct from asserting his right herein.

We cannot help but think Turnipseed v. Hudson, supra, is in point, the only difference being that in that case the law had been declared unconstitutional, and in this case it is sought to declare the law unconstitutional, the rights of the parties in either case depending on the illegality of the act. But this can make no difference when considering the conduct of thé parties with reference to the different acts. At the time the parties acted, both laws were regarded by the parties as being legal, and their conduct must be looked at with this idea in view. Of course in this ease, if the law is valid, the relator has no standing in court. His rights depend upon its invalidity, and it seems to us that estoppel by conduct has not been shown.

We adhere to our former judgment in holding the law unconstitutional. Nor do we think much should be added to what was said in the opinion. While the act in question is properly subject to criticism as to its wording, its intention and meaning seem free from doubt. We arrive at this conclusion after giving due consideration to all of the words of the act, taken in connection with the facts that existed at the time and the mischief to be remedied by it. When thus construed it can have but one intent and purpose, and that is, to create in the city of Cincinnati a “small” school board. Courts cannot profess ignorance of facts universally known.

It is equally clear that the intent and purpose of this act was that it •should not affect the other four cities placed in the same class by the act of 1904. To hold otherwise would defeat the clear intention of the legislature, and give an effect to the act that was clearly not contemplated. The purpose of this act was to change the school board of the city of Cincinnati, which it then had, and which was a large board consisting of twenty-seven members, to a small board consisting of not less than three and not more than seven members. At the same time it was the intention of the legislature that the other cities in the same class with Cincinnati should not be compelled to change their boards from large to small boards. It follows that it did not operate uniformly throughout the state.

Giffen and Smith, JJ., concur.


author: ALLREAD, J.

text:
    SCHOOLS AND SCHOOLHOUSES.
    [Franklin (2nd) Circuit Court,
    January Term, 1909.]
    Sullivan, Dustin and Allread, JJ.
    State of Ohio v. L. M. Turney.
    Parent not Complying with Board of Education’s Order to Vaccinate Child* not Amenable to Compulsory Education Act.
    A parent who sends his child to a public school and is willing to continue to do so, but the child is excluded for failure to comply with a rule of the hoard of education requiring vaccination, is not liable to conviction. under the compulsory education act (Sec. 4022-1 Rev. Stat.).
    [Syllabus by the court.]
    Error to Franklin common pleas court.
    C. E. Carter, for plaintiff in error.
    D. K. Watson and D. C. Jones, for defendant in error.
   ALLREAD, J.

The question involved in this case is whether a parent can rightfully be prosecuted and convicted under the compulsory education act when-he sends the child to school and is willing to continue, but the child is. excluded for failure to comply with a rule requiring vaccination.

The compulsory education act (See. 4022-1 Rev. Stat. et seq.) provides that, “Every parent, guardian or other person having charge of any child between the ages of eight and fourteen years, shall send such child to a public, private or parochial school, ’ ’ etc., and that “any parent, guardian or other person having care of a child between the-ages of eight and fourteen years, who shall, in violation of the provisions of this section, fail to place such child in school,” etc., shall' upon conviction, be fined, etc.

It is a fundamental rule applicable to all penal laws (State v. Myers, 56 Ohio St. 340, 350 [47 N. E. Rep. 138], that “a statute defining a crime cannot be extended by construction to persons or things, not within its descriptive terms, though they may appear to be within-the reason and spirit of the statute. Persons cannot be made subject to such statute by implication. Only those transactions are included-in them which are both within the spirit and letter; and all doubts in-the interpretation of such statutes are to be resolved in favor of the-accused. ’ ’

Section 3986 Rev. Stat., provides:

“The board of each district may make and enforce such rules and regulations to secure the vaccination of, and to prevent the spread of smallpox among the pupils attending or eligible to attend the schools of the district, as in its opinion the safety and interest of the public require. ’ ’

Under this authority the board of education of the city of Columbus adopted a rule that no pupil should attend any public school unless the pupil shall have had the smallpox or been vaccinated.

It may be noted that Sec. 3986 is found in a chapter entitled “Provisions applying to all boards.” It does not pretend to be penal.

The terms “send such child to school” and “place such child in school” found in the compulsory education act may be read together and as synonymous, and may and probably do ex vi termini include such preparation and conformity to usual rules as reasonably follow from the use of these terms in popular and general acceptation.

The compulsory education act was obviously intended to meet the eases where the parent was indifferent to the attendance of the child and made no effort to cause the child to attend the schools. The act was certainly not intended to be used as a means of enforcing any rule which the board of education in the plentitude of its general powers might see fit to adopt.

Such a construction would give the board of education the power by indirect means of criminal legislation not only against the pupil but the parents.

To so hold requires clear legislative expression and the authority cannot be sustained by inference or implication. The accused is to have the benefit of the doubt.

It must be observed that after conferring upon boards of education general power to make rules, special authority is conferred by the legislature as to vaccination.

By the clear weight, if not the universal trend of authority, it is held that a general order or rule adopted by a board of education requiring vaccination of pupils, except in the emergency of an actual impending epidemic, can only be sustained by direct and specific legislation.

Potts v. Breen, 167 Ill. 67 [47 N. E. Rep. 81; 39 L. R. A. 152; 59 Am. St. Rep. 262]; Mathews v. Kalamazoo (Bd. of Ed.), 127 Mich. 530 [86 N. W. Rep. 1036; 54 L. R. A. 736]; People v. Chicago (Bd. of Ed.), 234 Ill. 422 [84 N. E. Rep. 1046; 17 L. R. A. (N. S.) 709]; State v. Burdge, 95 Wis. 390 [70 N. W. Rep. 347; 37 L. R. A. 157; 60 Am. St. Rep. 83]; Osborn v. Russell, 64 Kan. 507 [68 Pac. Rep. 60]; Smith, In re, 146 N. Y. 68, 75 [40 N. E. Rep. 497; 28 L. R. A. 820; 48 Am. St. Rep. 769].

Crew, J. in State v. Barberton (Bd. of Ed.), 76 Ohio St. 297 [81 N. E. Rep. 568], holding valid the rule of the board of education excluding a pupil not vaccinated, expresses as one of the grounds of the decision that no question of compulsory vaccination was involved, but only the right of exclusion from the public schools. He quotes with approval from the ease of Bissell v. Davison, 65 Conn. 183 [32 Atl. Rep. 348; 29 L. R. A. 251], that the statute providing for vaccination “does not authorize or compel compulsory vaccination. It simply requires vaccination as one of the conditions of the privilege of attending the public school.”

These cases rest upon the well recognized principle that acts derogatory of common right and abridging personal liberty are like penal laws to be strictly construed in favor of the citizen, and that the legislature alone as the sovereign power can declare the necessity, and it must do so expressly; otherwise the intention will not be inferred.

The power delegated by the legislative act to the board of education is to “make and enforce such rules and regulations, etc., to secure vaccination,” etc.

Under the rule of strict construction, the delegation of power to the board to “make and enforce” rules does not contemplate any other penalty for a violation of the rule than those which the board' has authority to inflict, viz., suspension or exclusion from the schools of which they have control.

This conclusion is directly supported by Commonwealth v. Smith, 9 Pa. Dist. 625, and a dictum in Morris v. Columbus, 102 Ga. 792 [30 S. E. Rep. 850; 42 L. R. A. 175; 66 Am. St. Rep. 243], The contra is found in the opinion of Mathews v. Kalamazoo (Bd. of Ed.), supra.

The holding of Smith, In re, supra, is that express legislative authority is required to quarantine a citizen who refuses to be vaccinated. It does not follow from a law giving general authority to the board of health to adopt rules.

Counsel for the board of education contend that the exclusion of the child from the public schools does not relieve the parent from the obligation under the compulsory education of seeking its admission into a private or parochial school.

While it is true that the parent is required by the act to send his child to a public, private or parochial school, yet the election is with the parent. The character of our system of publie schools and the manner in which they are sustained, do not justify us in holding that where a child is excluded from the public schools — because in some degree supposed to be an “undesirable citizen,” — that the parent is compelled to seek its admission in a private or parochial school.

There is no presumption that the child if rejected by the. public schools would be received in a private or parochial -school or a school of some other district and therefore in the last analysis the question of compulsory vaccination comes up.

If exclusion for failure to comply with the rule of a public school as to vaccination is no defense to a prosecution under the compulsory education act, then the exclusion for violation of a similar rule as to private or parochial or other district schools would be no defense and we would then be face to face with a compulsory vaccination law.

Besides, the father elected to send his child to the public school and claims that he did so and offers to continue to do so. The validity of his convictions must rest upon proof of his sending or failing to send his child to the public schools.

There is no claim that the violation of the rules was a colorable pretext to justify a child of truant disposition and screen an indifferent parent. The evidence shows the child was willing to go to school and the parent anxious to have it go.

In this state of facts the conviction was unlawful and the judgment of the court of common pleas reversing the conviction and discharging the defendant is affirmed.

Sullivan and Dustin, JJ., concur.


author: WALTERS, J.

text:
    CONSTITUTIONAL LAW — AGRICULTURAL SOCIETIES.
    [Brown (4th) Circuit Court,
    April, 1909.]
    Cherrington, Jones and Walters, JJ.
    A. G. Markley et al. v. State of Ohio.
    1. Statute Prohibiting Maintenance of Temporary Business within One-fourth Mile of Fair Unconstitutional.
    Section 7006 Ohio Rev. Stat. which provides that, “whoever establishes a temporary place of business for the sale of any article whatsoever, or offers for sale any such article * * * within one-fourth of a mile of the fair ground of any agricultural society, while the fair of such society is being held therein, unless he has obtained the written permission of the board of such society” and imposing a penalty for the violation thereof, is an unconstitutional exercise of power by the ■ legislature.

      2. Violates Federal Constitution.
    Such, provision violates Art. 14, Sec. 1, of the federal constitution, because it abridges the privileges and immunities of citizens, deprives them of their property without due process of law, and denies to each the equal protection of the law.
    3. Delegation of Power to Fair Board Unlawfully Restricts Business.
    The delegation of power to the board of such fair, to determine who shall do the forbidden act is an unlawful restriction upon a lawful business giving the board the power to destroy competition and create a monopoly, and deprive the citizen of a right guaranteed to him by Art. 1, Sec. 1„ of the bill of rights, of enjoying and possessing his property.
    [Syllabus by the court.]
    Error to Brown common pleas court.
   WALTERS, J.

This is a proceeding in error to reverse the judgment of the lower-court.

Plaintiffs in error were indicted under Sec. 7006 Rev. Stat. for keeping a place of business, and also for exposing for sale, and selling certain articles, viz., lemonade, orangeade, ice cream, candy and pop corn, within one-fourth • of a mile of the agricultural fair then being-held in Brown-county, at Georgetown, by what is known as the Brown County Agricultural Society, on October 7, 8 and 9, 1908.

Section 7006 Rev. Stat. is as follows:

“ Whoever exhibits or shows any-natural or artificial curiosity for any price or gain, or sets up to let or use for profit any swing, revolving-swing, flying horses, whirligigs or other device, or whoever establishes a temporary place of business for the sale of any article whatsoever, or-offers for sale any such article except as a regularly established dealer in such article at his usual place of business, within one-fourth of a mile of the fair ground of any agricultural society, while the fair of such society is being held therein, unless hé has obtained the written permission of the board of such society, shall be fined not more than one hundred dollars nor less than one dollar. ’ ’

It is admitted in the bill of evidence that Markley, one of the plaintiffs in error, owned the real estate upon which the stand or booth was erected.

... It is admitted also that the plaintiffs in error did, on the days, when the fair was being held, from the' stand or booth so erected, sell lemonade, ice cream, candy, orangeade and pop corn, without having-first obtained the written permission so to do from the board.

The only question presented for our consideration is whether or not the provision of Sec. 7006 Rev. Stat., which refers to this subject-matter^ is constitutional, or whether or not the legislature was prohibited by-the fundamental law of the state from passing so much of this act as is embraced within this indictment. Its constitutionality is based upon the right of the legislature in passing the act, to do so, because.it was a valid exercise by it of what is known as the police power of the state.

The police power has its origin and is confined to, and ’deals with, that class of legislation which has to dp with the public health, publie welfare, public morals and publie safety. No general definition of this power, comprehensive enough to include within it all cases, has ever yet been written. But when called upon to apply to it the right of the legislature to enact a particular law, which for its validity must rest upon the existence of one or more of the objects embraced within its-scope, its definition does not seem so apparent or important. Especially is this observation true when applied to this case. In determining whether this portion of this Sec. 7006 is justified as being within the; police power, or is in violation of the constitution, we must ascertain whether the health, morals, safety and welfare of the public justify its enactment. The solution of this depends somewhat upon the question as to whether the Brown County Agricultural Society is a public or private corporation or agency.

In Dunn v. Agricultural Soc. 46 Ohio St. 97 [18 N. E. Rep. 496; 1 L. R. A. 754; 15 Am. St. Rep. 556], the Supreme Court of Ohio held that this, the Brown County Agricultural Society, was a private corporation aggregate, being a number of “natural persons associated together by their free consent, for the better accomplishment of their purposes, are bound to the same care, in the use of their property, and conduct of their affairs, to avoid injury to others, as natural persons; and, a disregard or neglect of that duty, involves a like liability. ’ ’

If this association was a public agency established exclusively for public purpose by the state, and connected with the administration of local governments, then it might well be said the legislature had authority to regulate even to prohibition of acts which would interfere; with its successful operation. The court, however, having found that it was a private corporation it must be treated the same as a natural person, though it may serve a publie purpose.

Mr. Tiedeman, in his work on Limitations of Police Powers, page 290, says:

“If the business is not harmful the prosecution of it cannot lawfully be prohibited to one who will conduct the business in a proper and circumspect manner. Such an one would be deprived of his liberty without due process of law.”

At page 301, the same author says:

“It has also been maintained, and we think satisfactorily established that no trade can be prohibited altogether, unless the evil is inherent in the character'of the trade; so that the trade howéver conducted and whatever may be the character of the person engaged in it, must necessarily produce injury upon public or upon individual third persons.” .

Mr. Justice Brown, in Lawton v. Steele, 152 U. S. 133, 137 [14 Sup. Ct. Rep. 499; 38 L. Ed. 385], says:

“To justify the state in thus interposing its authority in behalf of the public, it must appear, first,. that the interests of the public generally, as distinguished from those- of a particular class, require--such interference; and, second-,- that the means, áre, reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not,- under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. ’ ’

“It will probably not be disputed that every one has a right to pursue in a lawful manner, any lawful calling which he may select. The state can neither -compel him to pursue any particular calling, nor prohibit him from engaging in any lawful business, providing he does so in a lawful manner. Tiedeman, Limitation Police Powers Sec. 85.

“If the police regulation of trades and occupations cannot be instituted and enforced, except so far as a trade or occupation is harmful or threatens to be harmful in any way to the public, however slight "the restraining may be, so much the more necessary must it be to confine the exercise of the police power to the prevention of the injuries with which the public is threatened by the prosecution of a calling, when the law undertakes to deny altogether the right to pursue the calling or profession. In proportion to the severity or extent of the police control must the strict observance of the constitutional limitations upon police power be required. There is no easier or more tempting opportunity Tor the practice of tyranny than in the police control of occupations. Good and bad motives often combine to accomplish this kind of tyranny. The zeal of the reformer, as well as cupidity and self interest, must alike be guarded against. Both are apt to prompt the employment of means to attain the end desired, which the constitution prohibits.

“It has been so often explained and stated, that the police power must, when exerted in any direction, be-confined-to the imposition of those restrictions and burdens ■ which are necessary to promote the general welfare, in- other-words, to .present the infliction of a public injury, that it seems to be an unpardonable reiteration to make any further reference to it. But the principle thus enunciated is the key to every problem arising out of the exercise of police power. Applied to the question of prohibition of trades and occupations, it declares unwarranted by the constitution any law which prohibits altogether an occupation, the prosecution of which does not necessarily, and because of its unenviable character, work an injury to the public. Section 102.

“As long as a trade does not injure the public health, and is the source of no annoyance whatever to the inhabitants of the locality in which it is conducted, it cannot lawfully be prohibited. Every man has a constitutional right to follow on his premises any calling, provided it does not in any way interfere with another’s reasonable enjoyment of his premises. ’ ’ Section 102c.

We can see no element derived from the police power upon which this part of this act can be upheld. To sustain it would be to take another’s property without due process of law.

This act in its provisions admits the ] awfulness of the things complained of in the indictment, by providing that the written permission of such society shall make them so. Power is, therefore, here delegated to one person in his discretion to say whether another, his neighbor, shall be permitted to do a lawful act on his own premises, viz., sell his own personal property, which act is not in itself injurious to the public or any private individual, except he may come in competition in the sale of it with the person to whom is granted the power to say whether he shall compete or sell at all.

“The right to pursue any lawful business is more than a mere right. It is property that cannot be taken from him without due process of law.” State v. Scougal, 3 S. D. 55 [51 N. E. Rep. 858, 865; 15 L. R. A. 477; 44 Am. St. Rep. 756].

“It is not the question of how much or how little loss the citizen may sustain, it is a question of the power of the legislature to deprive a citizen of his property. If the power exists to take any, it would be difficult to fix the limit.”

Millett v. People, 117 Ill. 294 [7 N. E. Rep. 631; 57 Am. Rep. 869].

Article 14, Sec. 1, of the constitution of the United States provides:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall, any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the'laws.” '

Justice Field, in Slaughter-House Cases, 83 U. S. (16 Wall.) 97 [21 L. Ed. 394], says:

“The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.”

Article 1, Sec. 1, of our bill of rights declares,

“All men * * ■ * have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property.”

The effect of the act in question is to restrict or abridge the right ■of the plaintiffs in error to use and enjoy their property in a particular manner, so that the fair company may use its property in the same manner to greater profit than it could if each was left to the free use ■of its or their own as it or they should see fit. It is inimical to Art. 14, Sec. 1, of the federal constitution above quoted, because it therefore ■abridges the privileges and immunities of citizens, deprives them of their property without due process of law and denies to each the equal protection of the law.

The act in question gives to the board of trustees of the fair company the right to say who shall do the forbidden act; and restrains a lawful trade and occupation,- and gives it the power to destroy competition, and, therefore, create a monopoly. It takes away from the plaintiffs in error the right guaranteed them by Art. 1, Sec. 1, of our bill of rights, the privilege of enjoying and possessing their property. It gives to the fair association an absolute and arbitrary power over the-property of others.

The only ease which has been cited to us directly in point is Commonwealth v. Bacon, 76 Ky. (13 Bush.) 210 [26 Am. Rep. 189], and the syllabus is as follows:

“A statute forbidding any person to carry on the stabling business within a given distance of the grounds of a specified agricultural society, during the continuance of its fairs, and imposing a penalty for any breach of the law, is an unconstitutional interference with the right of enjoyment of private property.”

The statute under which this decision is made is in all respects like the one at ban .

We were cited in argument, Commonwealth v. Bearse, 132 Mass. 542 [42 Am. Rep. 450], where a somewhat similar statute was held to be constitutional, and as being a proper exercise of the police power. In that ease, however, the contention arose between a camp meeting association while engaged in the services usual and incident to those gatherings, and a carrying on of other business within the prohibited distance, which the court found might interfere and distract the attention of those who might desire to engage in those religious exercises from their proper performance of the same.

Entertaining these views, we are constrained to hold that the act in question so far' as it relates to the subject-matter in the indictment is unconstitutional, and the judgment of the lower court will be reversed', and proceedings to enter such decree as the lower court should have entered. The plaintiffs will be discharged.

Cherrington and Jones, JJ., concur.


text:
    ASSESSMENTS — PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Henry, Marvin and Winch, JJ.
    Forrester Plaster Co. v. Cleveland (City) et al.
    1. Lessee of Land not Entitled to Enjoin Improvement Proceedings.
    A tenant for years of premises abutting upon a proposed improvement within a municipal corporation is not an “owner” within the intendment of the statutes regulating such matters and is not entitled to notice of a resolution declaratory of intention to make said improvement.
    Error to Cuyahoga common pleas court.
    Weed, Miller & Nason, for plantiff in error.
    W. D. Wilkin, for defendant in error:
    Cited and commented upon the following authorities. Davis V. Cincinnati, 36 Ohio St. 24; Tracy v. Reed, 38 Fed. Rep. 69; Myers v. Akins, 4 Circ. Dec. 425 (8 R. 228) ; Cincinnati College v. Yeatman, 30 Ohio St. 276; East End Bank. & Tr. Co. V. Cleveland, 14 Dec. 33 (3 N. S. 493), affirmed by circuit, court without report, November 4, 1903, 49 Bull. 33; Wood v. Pleasant Bidge, 5 Circ. Dec. 516 (12 R. 177).
   WINCH, J.

The plaintiff is the lessee for a term of years, expiring in 1922, of certain premises on the westerly side of Kirtland street in the city of Cleveland, and brought its action in the common pleas court to enjoin the grading and improvement of said street in front of said premises and the levying of assessments thereon to pay for the same. The petition alleges that the improvement and assessment are illegal, because:

1. No notice of the resolution of the council declaring its intention to make the improvement was ever served upon the plaintiff, though it is a resident of the county and in possession of the premises under a recorded lease.

2. The proposed improvement would be of little benefit to the land and the assessment is excessive.

3. Irregularity in the proceedings in that the council without authority of law referred the apportionment and assessment of the cost of the improvement to the board of public service, to be determined by it.

4. Unfair assessment of the cost as between the abutting owners.

5. Unlawful method of making the assessment.

A demurrer to this petition was sustained and judgment being entered for the defendant, the case is here on error.

The only question raised by the demurrer is whether a tenant for years of premises abutting upon a proposed improvement within a municipal corporation is an “owner,” within the intendment of the statutes regulating such matters. The rights of an owner are twofold: to resist an excessive or illegal assessment upon his property and to recover damages, if he suffer any by reason of the improvement. The claims in the petition fall into these two classes. The first claim, lack of notice, covers both classes, and is jurisdictional. The second claim has regard to the question of damages or the taking of property without due compensation, and the third, fourth and fifth claims are respecting illegality in the assessment.

These latter claims may be dismissed with a word; the assessment is not made against the lessee, but against the landlord. There is no claim in the petition that plaintiff has in any way obligated itself to pay special assessments upon the demised premises. The argument that the landlord might fail to pay the assessment and so the land be sold to satisfy the lien upon it, finds no support in the petition. There is no allegation that the landlord is irresponsible, and, indeed, it would seem that the rent coming to him under the lease might furnish sufficient funds to pay the assessment, if he has no other funds.

The petition, therefore, shows no irreparable damage likely to result to plaintiff by reason of the assessment.

Little need be said with regard to the claim for damages. Plain-. tiff is not without adequate remedy at law to recover any damages it may suffer by reason of this improvement. This proposition is con-, ceded by defendant’s counsel and sustained by the authorities..

It remains to consider whether plaintiff was entitled to notice of the declaratory resolution, for it is well settled that without such notice to a resident owner, ’ ’ the entire proceedings are void as concerns him and an “owner” is entitled to an injunction under such circumstances, for the reasons stated in the case of Joyce v. Barron, 67 Ohio St. 264 [65 N. E. Rep. 1001].

Wo see no reason in favor of extending the meaning commonly given to the word “owner” as being the one having the title in fee of land so as to include the owner of lesser interests therein by lease or mortgage. No good purpose would be subserved, for we have already seen that the rights of others in the land are fully protected by the law without the service of notice upon them. On the other hand delay and expense in the making of public improvements would be occasioned if the municipality had to procure abstracts of title for all abutting lands and serve notice upon every person claiming an interest therein before it could proceed with its improvements.

It has been held, it is true, that a mortgagee of land damaged by a street improvement may maintain an action to recover therefor, notwithstanding the owner has been served with notice and recovered damages on his own account. Big Four Bldg. & Sav. Co. v. Cincinnati, 12 Dec. 218. Also that the interest of a mortgagee in land appropriated by a municipality cannot be taken from him without due process of law. Harrison v. Sabina (Vil.), 1 Circ. Dec. 49 (1 R. 49).

But these decisions are based upon the constitutional provision that no man’s property shall be taken from him without compensation therefor, and upon the general proposition that he is entitled to notice of any proceedings which may be instituted for the purpose of divesting him of his rights.

Judge Spear points out in Joyce v. Barron, supra, that the legislature has provided for notice of the pendency of street improvement proceedings to the owner of land for two reasons, first, to give the abutter a voice in the determination of the kind of improvement to be made and second, to give him a speedy determination of any claims for damages which he may make, so that he may use his damages to pay his assessment.

In our opinion the legislature has not seen fit to extend to others than owners in fee any voice as to the character • of the improvement and has not given them the benefit of the speedy determination of damages which the owner enjoys. A sound discretion in this respect has not resulted in depriving mortgagees or lessees of any rights which, as before stated, they are not entitled to maintain at law.

Judgment affirmed.

Henry and Marvin, JJ., concur.


text:
    BILL OF EXCEPTIONS — ERROR.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.

      Raphael M. Pedretti v. Charles A. Pedretti et al.
    Order Refusing Attobnet’s Fees not Review able without Bill op Exceptions.
    An order overruling a motion for compensation for attorneys for services rendered cannot be reviewed on mere exception to the judgment; a bill of exception containing all the evidence in the hearing is essential, in the absence of which it will be assumed that the trial court decided che matter correctly.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    Galvin & Bauer, for plaintiff in error.
    H. R. Probasco, for defendants in error.

       Affirming Pedretti v. Pedretti, 18 Dec. 224.

   SWING, J.

This is an action in this court to reverse the judgment of the court of common pleas, wherein that court refused to grant the motion of Galvin & Bauer, attorneys in the case for Raphael Pedretti, for compensation for services rendered the plaintiff and receiver and referee. The judgment entry recites that this motion was heard on testimony and was argued by counsel and the court being fully advised overrules said motion. The plaintiff excepted to the overruling of the motion, but no bill of exceptions was taken containing the evidence. Therefore this court cannot say whether the court decided the question correctly or not. A consideration of the evidence alone could show this. In the absence of this evidence, we must assume that the court decided the matter correctly. The judgment is therefore affirmed.

Giffen and Smith, JJ., concur.


author: GIFFEN, J.

text:
    NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    January 23, 1909.]
    Swing, Giffen and Smith, J.J.
    Slicer v. Koch & Braunstein Co.
    .Negligence Presumed from Stepping into Unguarded Stairway.
    Averments that a customer had knowledge of the existence of an open stairway in a store, stepped backward into the entrance thereof and was evidently precipitated to the basement below, raise a presumption that plaintiff was negligent, and the jury having conclusively found as a fact such negligence, a general verdict for the proprietors of the store will, not be disturbed.
    Error to Hamilton common pleas court.
    J. R. Jordan and W. M. Locke, for plaintiff in error.
    Kelley & Hauck and W. G. Roberts, for defendant in error.
   GIFFEN, J.

The negligence charged in the petition consists in maintaining an ■open stairway in defendant’s storeroom without any guardgate or light, •and placing a table so as to guide customers into the stairway. The manner in which the plaintiff was injured is averred as follows:

“When directly in front of the entrance to said stairway she, finding the articles she desired to purchase, turned to notify the clerk of her desire to purchase, when, without any carelessness or negligence ■on her part, having no knowledge of the existence of said stairway, and by reason of the carelessness and negligence of said defendant as afore-said, she stepped backwards into the entrance to said stairway and was .suddenly and violently precipitated down the stairs into said basement. ’ ’

Aside from the question whether this averment charges that the negligence of defendant caused plaintiff to be precipitated down the stairs, it raises a presumption that she herself was not, as averred, free from fault, which presumption is, by the jury in special findings returned with the general verdict, conclusively found as a fact, and that the same was the cause of her injury. The errors alleged in giving certain special instructions and refusing others are not therefore material ■or prejudicial.

We think the plat was sufficiently verified, and properly received as evidence. The testimony of the architect as an expert was incompetent ; but in view of the special findings was not prejudicial.

No other evidence is embodied in the bill of exceptions, and the 'general verdict being consistent with the special findings the judgment will be affirmed. '

Swing and Smith, JJ., concur.


author: MARVIN, J.

text:
    CONSTITUTIONAL LAW — OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    May 10, 1909.]
    Henry, Marvin and Winch, JJ.

      State ex rel. John A. Cline v. John L. Cannon et al.
    1. Statute Requiring Appointment of Legal Counsel by County Commissioners-to Perform Duties of Prosecutors is Unconstitutional.
    Legal counsel and assistant legal counsel, provision for the appointment ,and employment of which by county commissioners is made by Sec. 845 Rev. Stat., to perform duties and services required by statute to be performed by prosecuting attorneys, are officers; hence, Sec. 845 is in contravention of Art, 10, Sec. 2, of the constitution which requires all county officers to be elected by the electors of each county.
    2. Assistant Legal Counsel Compensated upon Percentage Basis Unwarranted.
    Section 845 Rev. Stat., being unconstitutional, an assistant legal counsel appointed by county commissioners by resolution thereunder, to perform the same and other duties than legal counsel and other assistant counsel appointed thereunder are required to perform, and be compensated upon a percentage basis instead of a salary, is also unwarranted.
    Quo Warranto.
    W. D. Meals, J. A. Cline and Fielder Sanders, for plaintiff:
    That portion of Sec. 845 providing for the appointment of legal counsel is unconstitutional for the reason that it creates a county office and provides for appointment thereto by the county commissioners and is therefore in contravention of Art. 10, See. 2, of the constitution of Ohio. Miller v. Sacramento Co. (Supvrs.) 25 Cal. 93, 98; Ogden v. Raymond, 22 Conn. 379 [58 Am. Dec. 429]; Shelby v. Alcorn, 36 Miss. 273 [72 Am. Dec. 169] ; State v. Brennan, 49 Ohio St. 33 [29 N. E. Rep. 593] ; State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. 723]; State v. HalUday, 61 Ohio St. 171 [55 N. E. Rep. 175] ; Palmer v. Zeigler, 76 Ohio St. 210 [81 N. E. Rep. 234]; State v. Perry Co. (Comrs.) 5 Ohio St. 497; Little Miami By. v. Greene Co. (Comrs.) 31 Ohio St. 343.
    F. L. Taft, H. H. McKeehan and G. M. Dahl, for defendants.

       Affirmed by Supreme Court, without report, Cannon v. State, 80 Ohio St. 756.

   MARVIN, J.

The relator by his petition seeks to oust the defendant, John L. Cannon, from the position of legal counsel, and each of the other two defendants from the position of assistant legal counsel for the county of Cuyahoga, state of Ohio. '

The facts briefly are, that the defendants, and each of them, claim to hold the positions named by virtue of a contract entered into between them severally and'the board of commissioners-of Cuyahoga county, on the fifteenth day of August, 1908. On that day there was filed with said board of commissioners a writing signed by the then prosecuting attorney of the county, which reads:

“Cleveland, Ohio, August 15, 1908.

“To the Board of County Commissioners:

“You are hereby requested to employ legal counsel and the necessary assistants upon such terms as you may deem for the best interests of the county, pursuant , to the provisions of Section 845 of the Revised Statutes of Ohio.

“(Signed) S. V. McMahon,

“Prosecuting Attorney.”

After the filing of such writing the board adopted a resolution, which reads in part:

“Now, therefore, be it resolved, That this board employ Jno. L. Cannon as such legal counsel, at an annual compensation of $3,000, and that it further employ Frank S. Day, as assistant legal counsel, at an annual compensation of $2,000, and that it further employ G. L. War-son as assistant legal counsel, at and for the compensation hereinafter fixed. ,

“The terms of employment herein made shall be for the term of three (3) years, beginning on the fifteenth day of August, 1908, and fully to be completed and ended on the fourteenth day of August, 1911.

“Said legal counsel, Jno. L. Cannon, or assistant legal counsel, Frank S. Day, shall be required to be present at all meetings of this board.

“This board shall provide offices for such legal counsel and his assistants, together with stenographer, telephone service and all necessary law books and stationery and supplies for the proper management and conduct of said office.

“Except as to the compensation of assistant legal counsel, G. L. Warson, the compensation of said legal counsel, his assistants and stenographer, together with office rent and the necessary expenses of said legal counsel, Jno. L. Cannon, and assistant legal counsel, Frank S. Day, incurred in performing the duties of said employment, shall be paid semimonthly out of the county treasury upon the allowance of the board.”

It is further provided in said resolution, as follows:

“In consideration of the compensation and other considerations herein expressed, such legal counsel and his assistants shall render the service now required by Section 845 of the Revised Statutes of Ohio, as amended at the second regular session of the seventy-seventh general assembly of the state of Ohio, 98 O. L. page 338, with the exception that the services required by sections 799, 1277, 1278a and 3977 of the Revised Statutes of Ohio, shall be rendered by said legal counsel and his. assistants without reference to, and exclusive of such compensation and; other considerations herein provided, and should said legal counsel and his assistants for any reason not be required or bound to perform th$ duties and services performed by the prosecuting attorneys under sections 799, 1277, 1278a and 3977 of the Revised Statutes of Ohio, such condition shall be held not to affect the terms of this employment.”

It will be noticed that the action of the commissioners is based upon Sec. 845 Rev. Stat., and on the part of the relator it is contended that in so far as said statute undertakes to authorize the appointment by the-commissioners of legal counsel, it is in contravention of Art. 10, See. 2, of the constitution of Ohio, which provides that all county officers shall bé elected by the electors of each county.

If the positions which the several defendants occupy and the duties-required of them are such as to constitute them officers, it is clear that, the statute authorizing their appointment by the board of county commissioners is in contravention of this constitutional provision. The language of so much of the section as is applicable to the present case, reads-, as follows:

“Whenever, upon the written request of the prosecuting attorney, the .board of county commissioners of any county deem it advisable, it may employ legal counsel and the necessary assistants upon such terms-as it may deem for the best-interests of the county, for the performance of the duties herein enumerated. Such counsel shall be the legal adviser of the board of county commissioners, and of all other county officers, of the annual county board of equalization, the decennial county board of equalization, the decennial county board of revision, and the board of review; and any of said boards and officers may require •of him written opinions, or instructions in any matters connected with their official duties. He shall prosecute and defend all suits and actions, which any of the boards above named may direct, or, to which it oi any of said officers may be a party, and shall also perform such duties and services as are now required to be performed by prosecuting attorneys under sections 799, 1274, 1277, 1278a, and 3977 of the Revised; Statutes, and as may at any time be required by said board of county, commissioners.

“Said board of county commissioners shall fix the compensation of all the persons appointed or employed under the provisions of this, act, which compensation together with their reasonable expenses shall be paid out of the county treasury upon the allowance of said board.

“None of the provisions of section 2834b of the Revised Statutes, shall apply to the appointment or employment herein authorized to be. made. ”

It will be seen by the provisions of the above statute that the legal.' counsel named shall “prosecute and defend all suits and actions, which, any of the boards above named may direct,” (that is, board of county-commissioners, board of equalization, decennial county board of revision and the board of review), or'“to which it or any of said officers, may be a party, and shall also perform such duties and services as are now required to be performed by prosecuting attorneys under sections. 799, 1274, 1277, 1278a and 3977 of the Revised Statutes.”

By Sec. 799, it is provided that the prosecuting attorney shall,, upon examination, determine and certify whether contracts therein named are in accordance with the lav/.

By Sec. 1274, it is provided that the prosecuting attorney shall be, the legal adviser of the county commissioners and all other county-officers.

By See. 1277, it is provided that the prosecuting attorney may, under circumstances named in the section, apply by civil action, in the name of the state, to a court of competent jurisdiction to restrain the* misapplication of funds, the completion of illegal contracts, and to recover back for the county money illegally paid out, etc.

By Sec. 3977, it is provided that the prosecuting attorney shall, prosecute all actions which may be brought, under title 3 of the statutes against any member or officer of the school board, and shall act in his official capacity as the legal counsel of such boards in all civil actions brought by or against them in their corporate or official capacity..'

That most of these duties, if not all of them, are official duties, duties which can only be performed by a public officer, would seem to be beyond question, under any definition of what constitutes an officer-with which we ax-e acquainted.

Meeham, Pub. Off. & Off., Sec. 1, defines a public office and a public: officer in these words:

“A public office is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or en~ during at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.”

The second section is headed “How Office Differs from Employment,” and quotes the following from the Supreme Court of Maine:

“We apprehend that the term ‘office,’ implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office; and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments and sometimes to another; still it is a legal power which may be rightfully exercised, and in its effects it will bind the rights of others, and be subject to revision and correction only according to the standing laws of the state. An employment merely has none of these distinguishing features. A public agent acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the acts performed the authority and power of a public act or law. And if the act be such as not to require such subsequent sanction, still it is only a species of service performed under the public authority and for the public good, but not in the exercise of any standing laws which are considered as rules of action and guardians of rights. ’ ’

Without stopping to quote further definitions we believe that none can be found that would not bring many of the duties to be performed by the legal counsel, as expressed in this statute, within the definition of an office, and therefore the party performing these duties within the definition of an officer. If this be correct, it follows, since quo warranto is the proper proceeding for removing one from office, that the judgment of ouster should be entered against these defendants.

It is urged on behalf of the defendant, Warson, that even though judgment should be entered against Cannon and Day, still that it ought not to be entered against him, and this because of the provisions in the resolution of the commissioners that Warson is to perform other duties than thóse provided for Cannon and Day, and because his compensation is to be fixed upon a certain percentage basis of taxes which may be collected by him, or through his efforts. But a complete answer to this is that by the resolution itself he is employed under the same statute, and is to perform all of the duties that each of the others is to perform, and in addition thereto is to perform certain duties in reference to the collection of delinquent taxes. He then having the same title as the' others have and being required to perform the samé duties, as well as certain other duties, if the appointment, of '¡Cannon and Day was not warranted because of the unconstitutionality of'’the statute under which they were appointed, the appointment of Warson is equally unwarranted, and we reach the conclusion, therefore,' that each of the three defendants should bé and is ousted; Cannon from the position of legal counsel, and Day and Warson from the position of assistant legal counsel.

Henr" and Winch, JJ., concur.


text:
    LIMITATION OF ACTIONS — TAXES.
    [Hamilton (1st) Circuit Court,
    February 6, 1909.]
    Swing, Giffen and Smith, JJ.
    C. H. Wiltsie v. J. B. McClymon et al.
    State’s Immunity against Statute of Limitations is not Transferable.
    The state’s immunity from the statute of limitations’ barring its claim for taxes is not transferred, to the purchaser, of lands at a tax sale by irtue of Sec. 288Ó Rev. Stat., giving him a lien for the purchase price upon the sale’s- being held invalid; hence, in an action to enforce such lien the plea of such statutory bar constitutes a good defense as to causes of action accrued more than six years.
    [Syllabus approved by the court.]
    W. F. Chambers, for plaintiff.
    J. J. Acomb and Harmon, Colston, Goldsmith & Hoadly, for defendant.
   SWING, J.

This is an action to subject lands to the payment of certain sums of money paid to the state on the sale of said lands at delinquent tax sale.

The petition alleges that plaintiff bought the land at delinquent tax sale in February, 3898; that said sale was invalid by reason of certain irregularities; that he paid the taxes of December, 1898, and the June tax of 1899; and he asks judgment for the amounts paid at the respective dates with interest, and asks for a foreclosure of his lien on the land.

Defendants filed an answer setting up a general denial and also a plea of the statute of limitations pleading the bar of six years. This action was brought January 21, 1907.

We are of the opinion that the plea of the statute of limitations is a good defense to this action.

It is conceded that the statute of limitations does not run against the state for taxes, and it is insisted that this exemption is transferred to the purchaser at tax sales by virtue of Sec. 2880 Rev. Stat., wherein it is provided that if the tax sale is proven to be invalid, the purchaser shall be entitled to receive from the properties the amount of the taxes and the land shall be bound for the payment of the same.

The right of the purchaser to maintain this action and have a lien on the land is conferred by the statute, and is not inherent in him, and in transferring this right to the purchaser the state does not confer with it the right of the sovereign not to be bound by any statute of limitations, and whatever right the purchaser gets is governed by the statute of limitations.

The provision of the statute applicable to this case is the six-year limitation. This action was not brought until after six years had elapsed after, the cause of action accrued.

The two propositions in the syllabus in the case of Hartman v. Hunter, 56 Ohio St. 175 [46 N. E. Rep. 577], are decisions of the two propositions involved in the determination of the questions here raised.

Petition dismissed.

Giffen and Smith, JJ., concur.


text:
    BENEFICIAL ASSOCIATIONS — INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    June 18, 1909.]
    Henry, Marvin and Winch, JJ.
    Margaret McGovern v. Brotherhood of Locomotive Firemen and Engineers.
    By-Law of Beneficiary Association Preventing Payment of Death Losses in Case or Presumed Death.
    A fraternal beneficiary association by-law, declaring that no death losses shall be paid where the only evidence thereof is the disappearance of a member, is for the mutual benefit of all members and not contrary to public policy. Where the constitution of the association reserves the right to amend the by-laws, such by-law is binding upon members and beneficiaries, notwithstanding its enactment but fifteen days before a legal presumption of the death of a member is established, and acceptance by the association from the beneficiary of all the premiums and assessments required by the policy with knowledge of such disappearance.
    Error to Cuyahoga common pleas court.
    Mathews & Orgill, for plaintiff in error.
    Cited and commented upon the following authorities. Utter v. Insurance Co. 65 Mich. 542 [32 N. W. Rep. 812]; Troné v. Accident Assur. Corp. 13 Dec. 298; Richards, Insurance Sec. 193; 29 Cyc. Law & Proced. 77, 81; Reynolds v. Supreme Council Royal Arcanum, 192 Mass. 150 [78 N. E. Rep. 129; 7 L. R. A. (N. S.) 1154]; Sisson v. Supreme Court of Honor, 104 Mo. App. 54 [78 S. W. Rep. 297]; Van Attem v. Modern Brotherhood of Am. 131 la. 232 [108 N. W. Rep. 313]; Beach v. Supreme Tent K. M. 177 N. Y. 100 [69 N. E. Rep. 281]; Pulford v. Fire Department, 31 Mich. 458; Coyle v. Benefit Soc. 17 N. Y. Weekly Dig. 17; Graftstrom v. Forest Council No. 21, 19 Misc. 180 [43 N. Y. Supp. 266] ; Lloyd v. Supreme Lodge K. P. 98 Fed. Rep. 66 [38 C. C. A. 654]; Taylor v. Modern Woodmen of Am. 72 Kan. 443 [83 Pac. Rep. 1099; 5 L. R. A. (N.' S.) 283] ; Grand Lodge A. O. U. W. v. Haddock, 72 Kan. 35 [82 Pac. Rep. 583; 1 L. R. A. (N. S.) 1064]; Deuble v. Grand Lodge A. O. U. W. 66 App. Div. 323 [72 N. Y. Supp. 755]; Deuble v. Grand Lodge A. O. U. Wt 172 N. Y. 665 [65 N. E. Rep. 1116]; Tebo v. Supreme Council Royal Arcanum, 89 Minn. 3 [93 N. W. Rep. 513]; Ayers v. Grand Lodge A. O. U. W. 188 N. Y. 280 [80 N. E. Rep. 1020] ; Modern Woodmen of Am. v. Wieland, 109 111. App. 340 y
      Butter v. Supreme Council A. L. of H. 186 N. Y. 514 [78 N. E. Rep. 1101]; Wist v. Grand Lodge A. O. U. W. 22 Or. 271 [29 Pac. Rep. 610; 29 Am. St. Re'p. 603]; Supreme Lodge K. P. v. Knights of Pythias, 117 Ind. 489 [20 N. E. Rep. 479; 3 L. R. A. 409]; Hale v. Aid Union, 168. Pa. St. 377 [31 Atl. Rep. 1066] ; Nibloch, Ben. Assn. (2 ed.) 65; Sutherland, Stat. Const. Secs. 464, 465; Boman v. Bankers Union, 76 Kan. 198 [91 Pac. Rep. 49]; Forest City^Court No. 10, F. of A. v. Bennie, 25 O. C. C. '790 (2 N. S. 510) ; Kaemmerer v. Kaemmerer, 231 111. 154 [83 N. E. Rep. 133] ; Wilcox v. Court of Honor, 114 S. "W. Rep. 1155 (Mo.) ; Schack v. Supreme Lodge F. B. 99 Pac. Rep. 989 (Cal.)-; Sautter v. Supreme Conclave I. O. H. 71 Atl. Rep. 232 (N. J; Emmons'v. Supreme Conclave I. O. H. 63 Atl. Rep. 871 (Del.) ; Ancient Order United Workmen v. Brown, 112 Ga. 546 [37 S. E. Rep. 890]; Roberts v. Grand Lodge A. O. U. W. 60 App. Div. 269 [70 N. Y. Supp. 57]; affirmed, without report, Roberts v. Grand Lodge A. O. U. Wi 173 N. Y. 580; Knight Templars’ <& Masons’ L. Indem. Co. v. Jarman, 104 Fed. Rep. 638 [44-C.. C. A. 93] ; Sovereign Camp W. W. v. Thornton, 115 Ga. 789 [42 S. E. Rep. 236]; Pellasino v. St. Joseph Soc. 9 Dec. Re. 635 (16 Bull. 27) ; Shipman v. Home Circle, 174 N. Y. 398 [67 N. E. Rep. 83; 63 L. R. A. 347]; Weber v. Supreme Tent K. M. 172 N. Y. 490 [65 N. E. Rep. 258; 92 Am. St. Rep. 753] ; Tisch v. Protected Home Circle, 72 Ohio St. 233 [74 N. E. Rep. 188] ; Herman v. Supreme Lodge K. P. 66 N. J. Law 77 [48 Atl. Rep. 1000] ; Knights of Golden Rule v. Everding, ll .Circ. Dec. 419 (20 R. 689); Whiteley v. Insurance Co. 72 Wis. 170 [39 N. W. Rep. 369]; Davie- v. Briggs, 97 U. S. 628 [24 L. Ed. 1086]; Cox v. Ellsworth, 18 Neb. 664 [26 N. W. Rep. 460; 53 Am. Rep. 827]; Fisdale v. Insurance Co. 26 la. 170 [96 Am. Dec. 136]; Spahr v. Insurance Co. 98 Minn. 471 [108 N. W. Rep. 4] ; North Western Mut.L. Ins. Co. v. Stevens, 71 Fed. Rep. 258 [18 C. C. A. 107]; Nepean v. Doe, 7 L. J. Exch. 335; Whiting v. Nicholl, 46 111. 230 [92 Am. Dec. 248]; Coburn v. Insurance Co. 145 Mass. 226 [13 N. E. Rep. 604]; Interstate Casualty Co. v. Bird, 10 Circ. Dec. 211 (18 R. 48).
    Car, Stearns, Chamberlain & Royan, for defendant in error.
   WINCH, J.

In 1891 P. W. McGovern became a member of the defendant organization. On January 13, 1900, he disappeared and has never since been seen or heard of by any of his friends, family or relatives. For seven years subsequent to his disappearance, his wife, Margaret McGovern, plaintiff in error, paid the premiums and assessments to the defendant as required by the policy, the defendant having notice of the fact that McGovern had disappeared.

In September, 1906, the defendant adopted a by-law declaring that no liabilities should be incurred because of the disappearance of. a member, or because of the presumption arising therefrom.

. This by-law went into effect January 1, 1907, or fifteen days before'the expiration of the seven-year period relied upon by plaintiff in. error to establish the legal presumption of death'.

In the court of common pleas the petition averred the -issuance, of the policy, the payment of .premiums and assessments, 'the performance of conditions precedent, and the facts as to McGovern’s absence for seven years. The defendant’s answer conceded the issuance of the policy and the payment of dues as alleged therein, and.asserted as a defense to the action the enactment of the by-law in question. •' .

The reply admitted the adoption of the by-law and alleged that it was adopted by the organization with knowledge of McGovern’s dis-appearance, and notwithstanding the acceptance of dues from plaintiff.

It .is also conceded in the pleadings that McGovern at the time he became a member agreed to conform to all laws, rules and regulations of the society then existing or that might thereafter be enacted.-

Upon this state of the pleadings the court sustained a motion by defendant to exclude evidence under the pleadings, and for judgment, in its favor.

A review of this judgment requires • an investigation of two ques-. tions: First, had the organization a right to pass any by-law.on January 1, 1907, which could be. binding upon McGovern’s beneficiary;-second, is the by-law which was passed, a valid'one?

First, if McGovern- was dead on January- 1, 1907,-the rights of his beneficiary were then vested and could not be divested by any-action of the association. But was he then dead, or was there, any presumption at that time that he -was dead?

There is no allegation in the pleadings that he was dead; the plaintiff relies solely upon the presumption of law, which arises after a man has been absent and unheard of for seven years. There is no presumption either of life or death at any particular time during the seven years. Whiteley v. Equitable Life Assur. Soc. 72 Wis. 170 [39 N. W. Rep. 369]; Supreme Com. Knights Golden Rule v. Everding, 11 Circ. Dec. 419 (20 R. 689).

It would seem then that under the power reserved by the organization it had a right on January 1, 1907, to enact a by-law which would be binding upon McGovern and his beneficiary. Tisch v. Home Circle, 72 Ohio St. 233 [74 N. E. Rep. 188].

The payment of dues by the beneficiary has no bearing upon the case; it is a concession on her part that the member is still alive.

Second, the reasonableness of such by-laws as the one pleaded in this case is recognized in Tisch v. Home Circle, supra, and cases there cited, but it is -urged that this by-law not only limits the right to Tecover under the certificate, but seeks to control the rules of evidence which shall be applied by the courts; that it attempts to abrogate the rule of the courts that proof of seven years absence unheard of, shall be received as proof of death.

..The point would, be. well taken were the defendant .an insurance company where the relation of company and policy holder is antagonistic, but it has been repeatedly held that the mutual interests of the members of a fraternal beneficiary association warrant their regulating their own affairs to the entire exclusion of the courts.

An agreement, such as we have here, that no death losses shall be paid when the only evidence of death is that the member has disappeared, is for -the mutual benefit of all the members, and it is not contrary to public policy for parties to agree among themselves for their mutual benefit. McGovern had the benefit of this agreement, as well, as all other members, and his beneficiary must share its burdens. Rood v. Railway P. & F. C. M. B. A. 31 Fed. Rep. 62; Sanderson v. Brotherhood of Railway Trainmen, 204 Pa. St. 182 [53 Atl. Rep. 767]; Osceola Tribe No. 11, I. O. R. M. v. Schmidt, 57 Md. 98; Kelly v. Supreme Council, 46 App. Div. 79 [61 N. Y. Supp. 1140].

It appears, then, that the organization had a right to pass the by-law in question, and that it is binding upon McGovern and his beneficiary.

Judgment affirmed.

Marvin and Henry, JJ., concur.


author: LAUBIE, J.

text:
    NTOXICATING LIQUORS — WORDS AND PHRASES.
    [Guernsey (7th) Circuit Court,
    April 23, 1909.]
    Laubie, Cook and Metcalf, JJ.
    John Murray v. J. A. Lafollette, Treas.
    1. Sale of Nonintoxicating Liquors not Taxable.
    Section 1 of the Dow act, as amended 98 O. L. 99, imposing a tax of $1,000 upon the business of trafficking in “spirituous, vinous, malt or other intoxicating liquors,” as distinguished from the previous sections, 85 O. L. 117 and 92 O. L. 34, imposing a tax upon the traffic in “spirituous, vinous, malt, or any intoxicating liquors,” limits the tax to the traffic in intoxicating liquors only; hence, amendatory act 98 O. L. 99 imposes no tax upon the traffic in nonintoxicating malt liquors.
    2. “Other’! . as ! Used in Phrase “Spirituous, Vinous, Malt or Other Intoxicating Liquors,” Has a Double Meaning.
    The word “other” in the descriptive phrase, “spirituous, vinous, malt or other intoxicating liquors” means all intoxicating liquors other than those made from malt, and thus means and includes only such liquors made from malt as are intoxicating.
    [Syllabus approved by the court.]
    Error to Guernsey common pleas court.
    J. F. Stockdale, for plaintiff in error.
    C. S. Sheppard, for defendant in error.
   LAUBIE, J.

The action was brought by the county treasurer to recover the tax imposed upon parties engaged in the business of trafficking in intoxicating liquors, claiming that Murray, defendant below and plaintiff here, was engaged in such business and therefore liable for this tax, and the court below so held.

There is an agreed statement of facts which, with the pleadings, ■constitute the record; and in that agreed statement of facts it is declared that the traffic in which this man was engaged was not in intoxicating liquors. He was selling Friedon malt beer, which it is agreed by the parties was not intoxicating. The claim of the defendant below, plain-. tiff in error, is that no tax under the statute could be levied upon the traffic in nonintoxicating malt liquor, and that is the question presented to us; and its settlement depends upon the construction to be given to -fehe statute.

That statute, 98 O. L. 99, is an amendment of See. 1 of the Dow act “providing against the evils resulting from the traffic in intoxicating liquors,” as amended February 20, 1896, which it changed in two' respects in reference to the matter in question, and reads as follows:

“Upon "the-business Of trafficking in'spirituous,'vinous, malt or other intoxicating liquors, there shall be assessed- yearly, and shall be paid into the county treasury, as hereinafter provided, by every person, corporation, or copartnership engaged therein, and for each place where such business is carried on by or for such persons, corporations, or copartnership, the sum of $1,000.”

One amendment is in regard to the amount of the tax, which it. increased, and the other is'in .reference to the liquors'trafficked in'. Both, of the .former acts described them as “spirituous,'vinous, malt, or any intoxicating liquors,” with a comma after the words, “spirituous, vinous, malt,” while in the present act they aré described -as “spirituous,, vinous, malt or other intoxicating liquors” with no comma after the word “malt,” so that the legislature, in thus altering the statute, must, háve intended to limit .the tax.to the traffic .in intoxicating liquors only.

The Supreme Court (State v. Kauffman, 68 Ohio St. 635, 644 [67 N. E. Rep. 1062]) in construing See. 1, as amended February 20, 1896, did hold that malt liquor was of two kinds, intoxicating and nonintoxieating, and that those words in such"-section, to wit, “malt, or any intoxicating liquors, ’ ’ were so broad as to include both — that the generic term “malt liquors,” included both! Since that decision, was: made and published this amendment Was made changing tÜe wording and punctuation of the statute, and it is fair to assume that the legislature-thereby-intended to change and limit the kind of liquor trafficked in, when it increased the tax so heavily -in an effort to abolish the evils, resulting .from the traffic in intoxicating liquors.. • Undoubtedly it-did mean a change so far as the- amount of the tax is concerned, because it. increased it, and the question now is whether or not the legislature intended to.change the law in.the other respect, in view of the ruling of the Supreme Court upon the original act, by changing the words ‘‘malt, or any intoxicating liquors.” to “malt or other intoxicating liquors.”.

The word “other’.’ has, and is entitled to and receives a double’ meaning in phrases of this character. It will, for example, include all' other articles of the kind named, not theretofore specified, as where a number of intoxicating liquors are specifically named followed by the words “or other intoxicating liquors.” Again, the use of the word in the phrase “spirituous, vinous, malt or other intoxicating liquors”' illustrates the other meaning - of the word “other.” Where it is thus connected, and coupled,;’-with/words , used .as mere adjectives,, then it.. means that all the articles thus previously .referred to, but not speoifi-r, cally-named, are of the character generally described, to wit, “intoxicating liquors.”

Article .2, See. 16, of the- constitution provides that all acts .of a,: general nature shall have but one subject, and that such subject shall, be expressed in the title of the act. “These titles are part of the statutes, and are to be considered in arriving at the intent .of the legislature.” Harris v. State, 57 Ohio St. 94 [48 N. E. Rep. 284], If, therefore, there were any doubt upon the question here, whether or not the-word “malt” as here used means both characters of liquors, intoxicating and nonintoxicating, then the court would look to the title itself in order to enable it. to find and ascertain what meaning the legislature-intended by such word; and here, if there be any doubt about it, the-title .of this act removes all such doubt.

It is entitled “An act providing against the evils -resulting from the .traffic in intoxicating liquors,” and the act itself refers solely to-intoxicating liquors, which would seem to indicate pretty clearly that, the legislature intended to impose the. tax solely upon traffic in intoxicating liquors. The subject-matter of .this, the Dow act, as expressed in the body of the act as well as in the title, is intoxicating liquors, with the. expressed purpose and design of abolishing “the evils resulting; from the traffic in intoxicating liquors, ’ ’ and how can anyone conceive,, from the use of such language, defining expressly the subject and purpose of the act, that the legislature .intended to, or did, impose the tax upon the traffic in mom-intoxicating liquors.

But the words of the section in question: “Upon the business-■ of trafficking in spirituous, vinous, malt or other intoxicating liquors ’ ’' need no such help in their construction. There is a comma after-. “spirituous” and after “vinous” but none after “malt.” It is connected directly and coupled with the words “or other intoxicating-liquors. ’ ’

AVhere in a statute of this character an article is particularly specified and named, to which is attached a well understood meaning, there: might be a different construction put upon it, and there has been in such a ease by the Supreme Court of this state. But here, “spirituous, vinous, malt” what are they? Spirituous what? Yinous what? Malt-, what? AVe know not, disregarding the title of the act, until we reach the words defining the subject-matter of the act, “intoxicating liquors,”, the traffic in which is to be taxed. Then we know that the articles are spirituous intoxicating liquors, vinous intoxicating liquors, malt, in toxicating liquors. “Spirituous,” “vinous,” “malt” are adjectives as thus used, and do not define any special article standing alone. Malt is a grain, commonly known as barley. Would anyone contend the legislature intended to tax trafficking in barley? As here used it is a mere adjective and was not intended to name the article trafficking in which was to be taxed.

In Cincinnati, L. & S. Tpk. Co. v. Neil, 9 Ohio 11, where the question was as to toll, this part of the provision was before the court for construction, “for every coach, chariot, or other four wheeled pleasure carriage;” and it was claimed that a stage coach was not a “pleasure carriage” and that the act included only pleasure carriages. Now the word “coach” is a noun and was thus used as such, and specified a definite article. The court says in this connection:

“It is contended the word other, in the clause of the act describing these vehicles, refers to coach as well as chariot, and the substantive chariot, used in the sentence adjeetively, qualifies coach, and carries with it the signification of pleasure coach. We do not so understand it. Coach forms a distinct member of the sentence; chariot then intervenes; and this Johnson defines a half coach with four wheels, used for convenience and pleasure. Then follow the words other four wheeled pleasure carriage; and chariot and carriage are coupled directly by the disjunctive or, intended to comprehend all pleasure carriages, other than chariots, but having no relation to coaches. We would not oppose the mere grammatical construction of a sentence, to the obvious meaning of the legislature; but both concur here. A mail coach and a stage coach, are nevertheless coaches. A coach is the description in the act. The defendants’ coaches are run on the road with the mail and with passengers, and must pay the toll assessed upon coaches.”

So that the term “coach” was held to be a distinct member of the sentence and not used adjeetively and of itself defined a certain kind of vehicle. Do the words “spirituous, vinous, or malt,” as here used, define a specific article? Here malt and the words “other intoxicating liquors” are coupled directly together by the disjunctive word “or,” intending to include all intoxicating liquors other than those made from malt, and thus meaning and including only such liquors made from malt as are intoxicating.

Neither spirituous, vinous nor malt, standing alone defines any special article, and disregarding the title of the act, it cannot be told what article is meant by the legislature until the words “intoxicating liquors” are reached.

In Myers v. Seaberger, 45 Ohio St. 232, 235, the court says:

“The rule as above stated is qualified as to ‘money’ by Sec. 2734 Rev. Stat. By this section every person of full age and sound mind is required to list for taxation ‘all moneys invested, loaned, or otherwise, ■controlled by him, as agent or attorney, or on account of any other person or persons.’ * * * The agent of the defendant had no power to loan or invest money for her in this state. His duties were confined to the collection of that which had been loaned, and transmitting it to his principal as fast as it was collected. The phrase, ‘or ■otherwise controlled by him, ’ must be construed to mean, in a manner .similar to the loaning and investing of money; for it is a settled rule of construction that; in accordance with the maxim noscitur a sociis, -the meaning-of a word may be ascertained by reference to the meaning ■of words associated with it; and again, according to a similar rule, the coupling of words together shows that they are'to be understood in the same sense.”

Both of these maxims — noscitur a sociis, and ejusdem generis — apply to the case here.

Here “malt or other intoxicating liquors” are coupled together. Neither spirituous, vinous nor malt is a distinct part of the sentence, but are coupled with, and their meaning can be ascertained only by reference to the words “or other intoxicating liquors,” so that, under these rules, where all are associated together, are combined together, they frame but one intent, purpose and meaning, and that is to levy .a tax upon trafficking in intoxicating liquors, as specified in the title.

We can see no good reason why this case should not be reversed, -there being no dispute, but it being agreed, as to the facts, that the -trafficking in malt by defendant below was not in intoxicating malt, but in nonintoxicating, and the petition of the plaintiff below will be dismissed at his costs.

Cook and Metcalf, JJ., concur.