author: Newman, J.

text:
    The State, ex rel. D’Alton, Prosecuting Attorney, v. Morse.

      Justices of the peace — Jurisdiction — Section 1711-1, General Code (103 O. L., 214) — Includes officers named in Section 1772, General Code — Territory annexed to Toledo — Section 1716, General Code.

    1. The officers named in Section 1772, General Code, are justices of the peace within the meaning of that term as used in Section 1711-1, General Code (103 O. L., 214).'
    2. Where a part of a township is attached to the city of Toledo and Port Lawrence township, a justice of the peace residing within the limits of that part of the township so attached may, under the provisions of Section 1716, General Code, execute the duties of the office of justice of the peace in the city of Toledo and Port Lawrence township and may hold court therein.
    (No. 15322
    —Decided July 1, 1916.)
    In Quo Warranto.
    Facts are stated in the opinion.

      Mr. John C. D’Alton, prosecuting attorney, and Mr. Allen J. Seney, for relator.

      Mr. Cornell Schreiber, for defendant.
   Newman, J.

The relator invokes the original jurisdiction of this court in quo warranto. His petition is challenged by demurrer upon the ground that facts sufficient to constitute a cause of action are not stated therein. On the 2d day of November, 1915, the defendant, Wilbur S. Morse, was elected, in Adams township, Lucas county, Ohio, a justice of the peace, and duly qualified as such officer and exercised the duties and privileges of said office in that township. Thereafter the city of Toledo, Port Lawrence township, Lucas county, duly annexed to said city of Toledo and Port Lawrence township that part of Adams township in which defendant resided and held court. Defendant was not elected or appointed a justice of the peace of Port Lawrence township, nor was he elected or appointed a judge and justice of the peace of the city and justice’s court of the city of Toledo and the township of Port Lawrence.

It is alleged that defendant unlawfully holds and exercises the privileges, franchise, rights and jurisdiction of a justice of the peace of Port Lawrence township without any legal warrant, grounds, or right whatsoever, to the damage and prejudice of and against the laws of the state of Ohio. The prayer of the petition is that defendant be required to answer by what warrant he claims to hold, exercise, and enjoy the office of justice of the peace in and for Port Lawrence. township, Lucas county, and that he be adjudged not entitled thereto and that judgment of ouster therefrom be pronounced against him.

By force of the amendments to the constitution of this state, effective January 1, 1913, the office of justice of the peace then ceased to be a constitutional office. Acting under the authority conferred upon it by Section 1, Article IV, of the Constitution, as amended in 1912, to establish courts inferior to the court of appeals, the general assembly on April 18, 1913, enacted Section 1711-1, General Code (103 O. L. 214), which is as follows:

“That there be and is hereby established in each of the several townships in the several counties of the state of Ohio, except townships in which a court other than a mayor’s court now exists or may hereafter be created having jurisdiction of all cases of which justices of the peace have or may have jurisdiction, the office of justice of the peace.
“The jurisdiction, powers and duties of said office, and the number of justices of the peace in each such township shall be the same as was provided by the laws in force on September 3rd, 1912. All laws and parts of laws in force on said date, in any manner .regulating such powers and duties, fixing such jurisdiction or pertaining to such office or the incumbents thereof are hereby declared to be and remain in force until specifically amended or repealed, the same as if herein fully re-enacted.”

Defendant claims the right to execute the duties of the office of justice of the peace in the city of Toledo and Port Lawrence township by virtue of the provisions of Section 1716, General Code, which reads as follows:

“If a part of a township is attached to another township, justices of the peace residing within the limits of that part so attached shall execute the duties of their office in the township to which such part is attached in the same manner as if elected for such township, and may hold court therein.”

This section was in force on September 3, 1912, and being a law pertaining to the office of justice of the peace it was one of the laws which Section 1711-1, General Code, supra, declared to be in force; and, not having been specifically amended or repealed, has remained in force.

But it is urged that there was no office of justice of the peace in the city of Toledo and Port Lawrence township on September 3, 1912, and that therefore the provisions of Section 1711-1, General Code, are not applicable. If the office of justice of the peace did not exist in that city and township it was because it had been abolished by Section 1772, General Code, which reads as follows:

“In the city of Toledo and the township lying wholly therein, the boundaries whereof are or hereafter may be concurrent with the boundaries of such city, there shall be three judges and justices of the peace in and for such city and township. They shall be elected at the regular municipal election therein in the same manner, shall hold office for the same term, possess the same jurisdiction, powers, duties and liabilities, and be subject to the same qualifications and disqualifications as justices of the peace for townships.”

It is to be presumed that the general assembly was mindful of Section 9, Article IV, of the Constitution of 1851, which provided for a competent number of justices of the peace in each township of the several counties. In the enactment of Section 1772, General Code, that body was complying with the mandate of the constitution and was providing for three justices of the peace in the city of Toledo and Port Lawrence township. It is true that in Section 1772, General Code, these officers are designated by a different name, yet they are nothing more nor less than justices of the peaqe. They áre elected at the regular municipal election, hold office for the same term, possess the same judicial powers, duties and liabilities, and are subject to the same qualifications and disqualifications as justices of the peace. This being true, when the general assembly in Section 1711-1, General Code, declared that all laws and parts of laws in force on September 3, 1912, in any manner regulating the powers, duties, and fixing the jurisdiction of justices of the peace should be and remain in full force until specifically amended or repealed, it was legislating with reference to the officers named in Section 1716, the same as though they had been designated justices of the peace. In the city of Toledo and Port Lawrence township there was, then, the office of justice of the peace. There did not exist “a court other than a mayor’s court having jurisdiction of all cases of which justices of the peace have or may have jurisdiction,” and therefore that city and township did not come within the exception named in Section 1711-1, General Code. Our conclusion is that when a part of Adams township was attached to the city of Toledo and Port Lawrence township, the relator, residing within the limits of that part so attached, was, under the provisions of Section 1716, General Code, entitled to execute the duties of his office in the city and township to which such part was attached.

Writ denied.

Nichols, C. J., Johnson, Donahue, Jones and Matthias, JJ., concur.

Wanamaker, J., not participating.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    The State, ex rel. The Franklin County Conservancy District et al., v. Valentine, Auditor.

      Conservancy act — Preliminary fund — Section 6828-43, General Code (104 O. L., 33) — General county funds to be reimbursed, when — Duties of directors of district.

    1. The levy authorized by Section 6828-43, General Code (Section 43 of the Conservancy Act of Ohio, 104 O. L., 13, 35), of three-tenths of one mill on the assessed valuation of property lying within a conservancy district, constitutes the final and sole source of the preliminary fund defined in Section 42 of the Conservancy Act, and is the primary fund from which the general funds of the county or counties constituting such district should be reimbursed for expenses paid out of these funds under authority of that section.
    2. The board of directors of a conservancy district has no authority or discretion to delay the reimbursement of the general funds of the county or counties constituting such district, for money advanced to the preliminary fund, after the receipt of funds by the district from any source provided by the statute for the raising of revenues for the use and purposes of a conservancy district.
    (No. 15242 —
    Decided September 2, 1916.)
    In Mandamus.
    On the 22d day of April, 1916, the State of Ohio, on relation of the Franklin County Conservancy District and Fred M. Sayre as Secretary and ex-officio Treasurer of the Franklin County Conservancy District, filed an original petition in this court against H. Sage Valentine, as Auditor of Franklin County, Ohio, praying that a peremptory writ of mandamus issue out of this court, directed to the defendant auditor, commanding him to issue his warrant on the treasurer of Franklin county, Ohio, payable to Fred M. Sayre as secretary and ex-officio treasurer of said conservancy district, for the sum of $74,149.90 — that sum representing the full amount collected upon an assessment of three-tenths of a mill levied by the board of directors of the Franklin county conservancy district, under authority conferred upon it by Section 43 of the Conservancy Act of Ohio (104 O. L., 13, 35), for the purpose of paying expenses of organization, for surveys and plans, and for other incidental expenses which might be necessary up to the time money should be received for the use of said conservancy district from the sale of bonds or otherwise.
    The petition averred that the board of directors of the Franklin county conservancy district, from the date of its organization until the first day of March, 1916, had .incurred expenses in the sum of $36,018.21, in and about the fulfillment of the purposes for which the district was created and organized, for surveys, engineering expenses, collection of information and data, and other expenses incidental to the administration of said district, all of which expenses were from time to time paid from the general fund of Franklin county, Ohio, upon the several orders of the court of common pleas of Franklin county, Ohio, and entered in the proceedings for the organization of said conservancy district; that said district had not yet received any money whatever from taxes or assessments, bond sales, or otherwise; that said relators had demanded that defendant, as auditor of Franklin county, issue his warrant on the treasurer of Franklin county, payable to said Fred M. Sayre, secretary and ex-officio treasurer of the district, for the full amount of $74,149.90, being the full amount of the collection of said assessment then in the treasury to the credit of said conservancy board; and that said defendant had thereupon refused, and still refuses, but withholds from the relator, his warrant for the said proceeds of said assessment and refuses to issue the same.
    To this petition the defendant filed an answer, admitting all of the allegations of the petition, and, further answering, averred that at' the time of said demand, by the board of directors and the secretary and ex-officio treasurer of the Franklin county conservancy district this defendant, as county auditor, had reimbursed the general county fund of Franklin county, Ohio, for the advancements made by it in payment of the expenses incurred by the directors of the conservancy district in the fulfillment of the purposes for which the district was created and organized, for surveys, engineering expenses, and other incidental expenses, aggregating the sum of $36,018.21, and thereupon had tendered the said board of the said conservancy district and the said Fred M. Sayre, as secretary and ex-officio treasurer of the said conservancy district, his warrant as auditor of Franklin county, Ohio, for the sum of $38,131.69, being the entire proceeds of said collection of three-tenths of a mill levied and collected under the resolution of the directors of the conservancy district, less the advancements made from the general county fund of Franklin county, Ohio, which warrant was then and there refused and is now brought into this court and deposited with the clerk hereof, subject to the acceptance of the relators and the orders of this court.
    To this answer, relators filed a general demurrer. Pending the hearing of this cause upon the demurrer, by agreement of parties and upon approval of the court, the warrant for $38,131.69 was delivered by the clerk of this court to Fred M. Sayre as secretary and ex-officio treasurer of the Franklin county conservancy district, upon a stipulation in writing that the acceptance of the same should not prejudice the rights or claims of any of the parties to the action.

      Messrs. Webber, McCoy & Jones and Mr. O. E. Davis, for relators.

      Mr. Robert P. Duncan, prosecuting attorney; Mr. W. J. Ford, assistant prosecuting attorney; Mr. A. Ward Clutch and Mr. Robert J. Beatty, for defendant.
   Donahue, J.

Section 6828-43, General Code (Section 43 of the Conservancy Act of Ohio, 104 O. L., 13, 35), provides:

“As soon as any district shall have been organized under this act, and a board of directors shall have been appointed and qualified, such board of directors shall have the power and authority to levy upon the property of the district not to exceed three-tenths of a mill on the assessed valuation thereof as a level rate to be used for the purpose of paying expenses of organization, for surveys and plans, and for other incidental expenses which may be necessary up to the time money is received from the sale of bonds or otherwise.”

The expenses incurred by the board of directors of the Franklin county conservancy district, and paid from time to time ‘from the general fund of Franklin county, Ohio, were for the purposes named in this section, for which this levy of three-tenths of a mill is authorized.

The fund arising from this levy, together with advancements made from the general county fund, as authorized by the same section, constitutes the preliminary fund named in Section 6828-42, General Code. It is clear that this preliminary fund is the primary fund from which these expenses for organization, surveys and plans, and other incidental expenses, should be paid. It is equally clear that the money from the general funds of the county used for the payment of these expenses was not intended by the legislature as a permanent addition to the preliminary fund, but merely an advancement or loan to it in anticipation of the collection of this levy; so that the final and only source of the preliminary fund defined in Section 42 of the Conservancy Act is this levy of three-tenths of a mill upon the assessed valuation of the property of the district. Section 43 of the Conservancy Act, which authorizes this levy, specifically designates the purposes for which the proceeds- of this levy shall be used.

. It follows, therefore, if the general funds of the county are but loaned or advanced to the preliminary fund of the. conservancy district, in anticipation of the levy, that the proceeds of this levy must be applied to the reimbursement of the general funds of the county.

• If there were any doubt upon this proposition, the facts in this case would, nevertheless, require that the proceeds of this levy should be applied to the reimbursement of the general funds of the county. The same section that authorizes the payment of these expenses out of the general funds of the county also provides that “upon receipt of funds by the district from the sale of bonds or by taxation or assessment the funds so advanced by the counties shall be repaid.” This plain provision of the statute is mandatory. It would be idle to discuss the question of the authority of the board of directors to order repayment to the county fund out of other funds in its possession or control, when it has received no funds except this one arising from the tax levy of three-tenths of a mill upon the assessed valuation of the property within the conservancy district.

While the fund arising from this levy is undoubtedly the proper and primary fund out of which repayment should be made to the county fund, nevertheless the general assembly of Ohio has safeguarded the general funds of the county by this mandatory provision requiring reimbursement upon the receipt of funds from any source whatever. The board of directors of the conservancy district has no discretion to delay the reimbursement of the general fund of the county after it receives funds from any source provided by the statute, but must forthwith apply these funds to the repayment of the advancements made from the general fund of the county; and even if some other funds were so applied it would seem from this legislation to be the clear duty of the board of directors to immediately reimburse the fund so depleted from the proceeds of its levy for the preliminary fund, for it is expressly for the payment of these expenses that this levy is authorized.

The demurrer to the answer is overruled, and, the relators not desiring to plead further, a peremptory writ is refused and the petition dismissed at cost of relators.

Writ refused.

Nichols, C. J., Johnson, Newman, Jones and Matthias, JJ., concur.

Wanamaker, J., not participating.


text:
    The State, ex rel. Heald, v. Zangerle et al., Budget Commissioners.

      Taxation — Sinking fund and interest levies — Duty of trustees and council — Section 4513, General Code — Budget commissioners to certify rate to auditor — Section 5649-1, General Code.

    1. Under the provisions of Section 4513, General Code, it is the duty of the trustees of the sinking fund to certify to council the rate of tax necessary to provide for sinking fund and interest purposes, and the amount so certified must be placed in the taxing ordinance by the council, before and in preference to any other item and for the full amount thereof.
    2. The provision of Section 5649-1, General Code, that the taxing authorities in each taxing district of the state shall levy a tax sufficient to provide for sinking fund and interest purposes, requires the county budget commissioners to certify to the county auditor a tax sufficient for such purposes, regardlesá of other needs of the taxing district. (Rabe et al. v. Board of Education, 88 Ohio St., 403, approved and followed.)
    (No. 15360 —
    Decided August 4, 1916.)
    In Mandamus.
    On the 25th day of July, 1916, the relator, John C. Heald, filed in this court a petition praying that a writ of mandamus issue to John A. Zangerle, P. C. O’Brien and Cyrus Locher, constituting the budget commissioners of Cuyahoga county, commanding them to certify to the auditor of Cuyahoga county the sum of $3,510,626.46, in preference to all other items of tax, as the amount required for sinking fund and interest purposes for the ensuing year for all bonds issued and outstanding by the city of Cleveland.

      It is averred in the petition that the relator is a •resident taxpayer of the city of Cleveland; that on the 29th day of June, 1916, he requested, in writing, the prosecuting attorney of Cuyahoga county to bring proceedings in mandamus, but that the prosecuting attorney of said county refused to bring the same; that this sum of $3,510,626.46 is required to provide for sinking fund and interest purposes, to pay the interest on the outstanding bonds of said city, and to retire the same at maturity.; and that the taxing officials of the city of Cleveland have certified to the county auditor of said county the annual budget of the city of Cleveland for the ensuing year, which budget names this amount for the purposes stated, but that the defendants have threatened to, and will, unless restrained, certify to the county auditor as the amount required for sinking fund and interest purposes a sum less than $2,500,000.
    The defendants by answer admit the allegations of the petition above set forth, and, further answering, aver that the total taxable property in the taxing district of Cleveland is approximately $920,-000,000 and that the amount to be derived from the duplicate for use by the city for the year 1917, at the maximum rate of taxation allowed by law, will approximate $5,988,700; that the current expenses for the operation and maintenance of the city of Cleveland for 1915 were $5,967,701.53; that by the practice of strict economy the operating cost of the city of Cleveland for the first six months of 1916 was $2,600,935.91; that the operating cost for the entire year of 1916 will be twice that sum; and that the city will need for current expenses for the year 1917 the sum of $4,976,731.
    The answer also contains a copy of the resolution adopted by the sinking fund commission of the city of Cleveland in May, 1916, in which resolution it is declared that the amounts necessary to provide a sinking fund for the future payment of bonds issued by the corporation, for the payment of final judgments, except in condemnation of property cases, and for the payment of interest on all bonded indebtedness and the expenses incident to the management of the sinking fund, will aggregate' $3,510,626.46.
    To this answer the relator filed a general demurrer.

      Messrs. David & Heald, for relator.

      Mr. Cyrus Looker, prosecuting attorney, and Mr. Frederick W. Green, assistant prosecuting attorney, for defendants. ' - .
   Donahue, J.

Section 5649-1, General Code, specifically requires the taxing authorities of every taxing district to levy a' tax sufficient to provide for sinking fund and interest purposes. This tax must be levied regardless of other needs. Rabe et al. v. Board of Education, 88 Ohio St., 403.

Under the provisions, of Section 4513, General Code, it is the duty of the trustees- of the sinking fund to certify to council the rate of tax necessary for sinking fund and interest purposes, and the municipal council is commanded by this section to place the amounts so certified in the tax ordinance before and in preference to any other item and for the full amount certified.

The provisions of Section 5649-1, General Code, necessarily apply to the budget commissioners of the county.

Section 4513, General Code, vests in the trustees of the sinking fund the authority to determine and certify the amount necessary for the purposes mentioned; It is not seriously contended that the amount certified is excessive. The only reason offered by the defendants for not certifying the full amount to the county auditor is that if this is done a sufficient sum cannot be provided, within the limitations fixed by law, to meet the current expenses of city government. That is unfortunate, but it does not authorize the budget commissioners to ignore the law.

It is suggested that the requirements of Sections 5649-1 and 4513, General Code, can have no application to bonds issued before these sections were enacted, and that the application of their provisions to such bonds would be to give these statutes an ex post facto operation. It appears, however, that the statutes of this state contained similar provisions when all the existing bonds of the city of Cleveland were issued.

The demurrer to the answer is sustained, and, the defendants not desiring to plead further, it is ordered that a writ of mandamus issue as prayed for in the petition.

Peremptory writ awarded.

Johnson, Newman and Matthias, JJ., concur. Nichols, C. J., Wanamaker and Jones, JJ., not participating.


author: By the Court.

text:
    The State, ex rel. Locher, Prosecuting Attorney, v. Coffenberry et al.

      Taxation — Real property — Equalisation of reassessments — By county boards of revision — Act of May 7, 1915 (106 O. L., 246-272).

    (No. 15362 —
    Decided August 4, 1916.)
    In Mandamus.

      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, assistant prosecuting attorney, for relator.

      Mr. Edzvard C. Turner, attorney general; Mr. H. C. Sherman; Mr. Richard H. Lee; Mr. A. M. Snyder and Mr. Amos Burt Thompson, for defendants.
   By the Court.

The act of the general assembly, passed May 7, 1915 (106 O. L., 246), entitled “An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,” confers no authority upon county boards of revision to originally assess property for taxation, nor to increase or decrease valuations of real estate not appraised during the current year; hence such boards are without power to equalize reassessments ,of real property in any district or part thereof, made in pursuance of the provisions of Section 55 of that act, with the existing assessments of real estate in the remainder of the county not reassessed under the provisions of said section.

The question of the constitutionality of said act having been raised and presented in another action in this court, is by consent of counsel not considered or disposed of in this action, it being unnecessary to a decision of this case, but is reserved for further consideration and decision in the case of The State, ex rel. Godfrey, v. O’Brien, Treas., et al., being cause No. 15190 on the general docket of this court.

For the reasons above stated, the demurrer to relator’s petition is sustained, and, the relator not desiring to further plead, the writ of mandamus prayed for is denied and the petition herein is dismissed.

Writ refused.

Johnson, Donahue, Newman and Matthias, JJ-, concur.

Nichols, C. J., Wanamaker and Jones, JJ., not participating.


text:
    Zangerle et al. v. The State, ex rel. Heald.

      Taxation — Real property valuations — Quadrennial duplicate of 1910 —Adoption and use in 1914 and 1915 — Under Wames lave (103 O. L., 786) — Subsequent adoption arid use in 1916 — Under Parrett-Whittemore law (106 O. L., 246).

    (No. 15391 —
    Decided September 2, 1916.)
    Error to the Court of Appeals of Cuyahoga county.

      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, assistant prosecuting attorney, for plaintiffs in error.

      Messrs. David & Heald, for defendant in error.
   By the Court.

The relator, John C. Heald, as a citizen, taxpayer and owner of real estate in the city of Cleveland,-on August 17, 1916, brought an action in the court of common pleas of Cuyahoga county to enjoin John A. Zangerle, one of the plaintiffs in error, as auditor of that county, from placing upon the tax duplicate of Cuyahoga county for the year 1916 any valuations of real estate fixed by the assessors in 1910, or by the district assessors in 1914 and 1915, or by the assessors, assistant assessors and county auditor in 1916, and to enjoin him from certifying any duplicate- containing such valuations to the county treasurer, and further, to enjoin P. C. O’Brien, one of the plaintiffs in error, as treasurer of said county, from collecting any taxes upon said valuation.

In 1910 all the real property in Ohio was valued for taxation under a law then in force providing for a valuation in that year and every fourth year thereafter. That law was repealed by the act of April 18,1913 (103 Ohio Laws, 786), known as the Warnes law, which provided for annual valuations of all real and personal property. The Warnes law was repealed by the act of May 7, 1915 (106 Ohio Laws, 246), which, it is claimed, provided for the annual valuation of all real and personal property. It was alleged in the petition that the provisions of the Warnes law were not complied with in the years 1914 or 1915, in that no complete valuation of real property was made either in the city of Cleveland, the county of Cuyahoga, or the state of Ohio, only a small part of the real property in said city, in the county outside of the city, and in the state outside of said county, being so valued for taxation in the years 1914 and 1915. It was alleged further that the provisions of the Parrett-Whittemore law were not complied with, because only a small portion of the real estate in the city of Cleveland, no part of the real estate in the county outside of the city, and only a small portion of the real property in the state outside of said county, was valued for taxation in 1916.

It appears, however, from the petition that the district assessors provided for under the Warnes law adopted the valuations of the real property made in 1910, except as to a small part of the real estate, and that the county auditor in 1916 was attempting to place upon the tax duplicate for that year the values fixed by the assessors in the year 1910, except so far as the real property was valued for taxation by the district assessors in 1914 and 1915, and by the assessors, assistant assessors and county auditor in 1916. The relator predicated his right to an injunction upon the ground that the valuations fixed by the assessors in the year 1910 were without legal force and effect after the year 1913, and that the valuations fixed by the district assessors in the years 1914 and 1915, and by the assessors, assistant assessors and county auditor in the year 1916, were also without legal force and effect, because the real property so valued constituted only a small part of the aggregate real property in the city of Cleveland, in the county of Cuyahoga, and in the state of Ohio. A demurrer to the petition was overruled by the court of common pleas and by the court of appeals on appeal, and the relief asked for by the relator was granted.

The only question presented here is whether the duplicate of 1916, as made up by the county auditor, is a legal one. The duplicate containing the valuations made in 1910 was in existence when the Warnes law became effective and the valuations of the real estate as shown by that duplicate were adopted and used in the years 1914 and 1915, except in so far as a part of the real property was valued in those years, and the duplicate of those years met the requirements of the Warnes law. In 1916, when the Parrett-Whittemore law became effective, the duplicate of 1915 was in existence and we can see no legal objection to the adoption of the valuations shown by it as the valúations of the real property for the duplicate of 1916. The taxing officials in pursuing the course they did in making up the tax duplicate for 1916 complied, we think, with the requirements of the Parrett-Whittemore law. The demurrer to the petition should have been sustained.

Judgment reversed.

Nichols, C. J., Johnson, Donahue, Newman and Matthias, JJ., concur.

Wanamaker and Jones, JJ., not participating.


text:
    Erie Railroad Co. v. Schlegel, Admr. Erie Railroad Co. v. Huszty.

      Trials — Verdict by three-fourths of jury — Section 5, Article I, Ohio Constitution, 1912 — Sections 11455- and 11457, General Code (103 O. L., 11) — Actions under federal employers? liability acts —35 U. S. Stats, at Large', 65, c. 149 — 36 U. S. Stats, at Large, 291, c. 143 — Articles VII and XIV, Amendments to V. S. Constitution.

    (Nos. 15070 and 15118 —
    Decided May 23, 1916.)
    Error to the Court of Appeals of Summit county.
    Error to the Court of Appeals of Cuyahoga county.

      Messrs. Mather & Nesbitt and Messrs. Cushing, Siddall & Lamb, for plaintiff in error.

      Messrs. Hagelbarger & Doolittle, for defendant in error, Schlegel, Admr.

      Messrs. Bernsteen & Bernsteen, for defendant in error, Huszty.
   Judgments affirmed on authority of Minneapolis & St. Louis Rd. Co. v. Bombolis, Admr., 241 U. S., 211.

Judgments affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    The State, ex rel. Campbell, v. Grimes, Judge.

      Supreme court — Dismissals — Moot questions.

    (No. 15189
    —Decided May 29, 1916.)
    Error to the Court of Appeals of Jackson county.

      Mr. Elmer C. Powell, for plaintiff in error.

      Mr. Benner Jones, for defendant in error.
   Cause dismissed on the authority of Miner v. Witt, Clerk, 82 Ohio St., 237.

Cause dismissed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14749.
    Gawne v. The City of Cleveland.
    Decided April 25, 1916.
    Error to Court of Appeals of Cuyahoga county.

      Mr. M. P. Mooney; Messrs. Tolies, Hogsett, Ginn & Morley; Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews and Mr. E. J. Blandin, for plaintiff in error.

      Mr. Newton D. Baker; Mr. John N. Stockwell, director of law, and Mr. Arthur F. Young, assistant director of law, for defendant in error.
   On rehearing. Former judgment [93 Ohio St., 493] adhered to.

Nichols, C. J., Johnson, Donai-iue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    No. 14968.
    Cerri, etc., v. Zero, Admr.
    Decided May 9, 1916.
    Error to Court of Appeals of Lorain county.

      Mr. Harry F. Payer and Mr. Frederick A. Henry, for plaintiff in error.

      Mr. G. C. Washburn and Mr. C. F. Adams, for defendant in error.
   On rehearing. Judgment of the cotírt of appeals reversed.

Journal entry: On motion of the plaintiff in error, and it appearing that a judgment of affirmance was inadvertently entered in this case, that judgment [93 Ohio St., 482] is hereby opened up and set aside, and the motion for rehearing is allowed, and this cause coming on further to be heard by the court upon the transcript of the record of the court of appeals of Lorain county, the arguments and briefs of counsel, it is ordered and adjudged that the judgment of the said court of appeals be and the same hereby is reversed, for the reasons stated in the opinion of this court in the case of Pagano, Admr., v. Cerri, etc., No. 14897, published in the official reports of this court [93 Ohio St., 345].

And this court coming now to render the judgment that the court of appeals should have rendered, it is further ordered and adjudged that the judgment of the common pleas court reversing the judgment of the probate court of Lorain county, be and the same hereby is reversed, and the judgment of the probate court of Lorain county be and the same hereby is affirmed. — Reporter.

• Nichols, C. J., Johnson, Donahue, Wana-' maker, Newman, Jones and Matthias, JJ., concur.


author: Matthias, J. Donahue, J.,

text:
    The State, ex rel. Menning et al., County Commissioners, v. Zangerle, Auditor.

      Taxation — Limitation of levy — Sections 5649-2 to 5649-56, General Code — Exemption statutes strictly construed — Emergency levies — Sections 5649-4 and 7419, General Code — Confined to extraordinary conditions, when — Road levy not exempt, when.

    1. In view of the legislative policy declared by the enactment of the so-called Smith one per cent, law (Sections 5649-2 to 5649-56, ■General Code), the manifest purpose of which is to restrict the power of levying taxes and thus limit expenditure by administrative officers, statutes purporting to permit departures from that general policy and authorizing exemption therefrom ’will be strictly construed.

      2. Section 5649-4, General Code, is not a legislative declaration that all the conditions enumerated in Section 7419, General Code, are emergencies' for which taxes may be levied in excess of the limitation prescribed.
    3. Exemption from the restriction fixed by such law applies only in favor of levies required to meet extraordinary conditions resulting from some unexpected or unforeseen occurrence or circumstance, such as the destruction of. or damage to a principal highway by freshet, landslide, wear of watercourses or other casualty.
    4. Neglect or inattention of public officers to repair highways does mot constitute an emergency, and a levy of taxes for the purpose of meeting the expense of reconstruction, repair and maintenance of roads which, by reason of such neglect and inattention, or by reason of a large amount of traffic thereon, have become gradually worn out and unfit for travel, even though they cause difficulty, danger or delay, is not exempt as an emergency levy.
    (No. 15361
    Decided October 11, 1916.)
    In Mandamus.
    This is a proceeding in mandamus instituted in this court by the relators, Joseph Menning, F. T. Andrews and Pierce D. Metzger, who are the county commissioners of Cuyahoga county, Ohio. In their petition they aver that on June 21, 1916, the board of county commissioners of said county adopted the following resolution:

      "Be It Resolved by the Board of County Commissioners of Cuyahoga County, Ohio, that it is hereby found and determined that by reason of neglect and inattention to the repair of the highways hereinafter enumerated, said highways have become unfit for travel and cause difficulty, danger and delay to teams passing thereon; that said highways are some of the principal highways of the County; that the ordinary levies authorized by law are inadequate' to provide money necessary to make the changes and repairs in such roads as are rendered necessary by reason of such neglect and inattention; and that it is necessary to levy a tax upon all taxable property of the County to be expended for the construction, reconstruction, repair and maintenance of said roads. Said roads, with the amount necessary to levy in case of each road, are as follows: (Here follows a list of twenty-four highways with the location and boundary of each.)

      "Be It Further Resolved that there shall be and hereby is levied upon all taxable property of the County, for the purposes hereinbefore enumerated, the sum of $600,000.00, to be expended for the construction, reconstruction, repair and maintenance of said roads.”
    Relators further aver that the highways enumerated are some of the principal highways of the county of Cuyahoga and that by reason of the large amount of traffic thereon and by reason of neglect and inattention to repairs thereof said highways have become unfit for travel, and cause difficulty, danger and delay to teams passing thereon; that the ordinary levies authorized by law for such purposes will be inadequate to provide money necessary to make the changes and repairs in such roads required by reason of the causes enumerated, and that in order to make such changes and repairs it will be necessary, as provided in said resolution, to levy a tax in the sum of $600,000 in excess of any of the limitations provided in Sections 5649-2 to 5649-5&, General Code; that said levy was certified by said board of county commissioners to the respondent, John A. Zangerle, as county auditor, to be by him placed upon the tax list for levy upon all the taxable property in said county, in excess of the limitations provided in Sections 5649-2 to 5649-5&, General Code; and that the respondent refuses so to do.
    The prayer is for a writ of mandamus, commanding the respondent, as such auditor, to place upon the tax list of Cuyahoga county, Ohio, a levy in excess of the limitations provided in Sections 5649-2 to 5Ó49-5&, General Code, sufficient in amount to provide the sum of $600,000 for the construction, reconstruction and repair of the roads designated and described in said resolution.
    The case was presented to this court upon demurrer to the petition, the respondent contending that the facts set out in the petition do not entitle the relators to the relief sought.

      Mr. Richard H. Lee, for relators.

      Mr. Cyrus Locher, prosecuting attorney; Mr. Frederick W. Green, assistant prosecuting attorney; Mr. Edward C. Turner, attorney general, and Mr. H. C. Sherman, for respondent.
   Matthias, J.

The resolution of the county commissioners, declaring the necessity for the levy of a tax in the sum named for the purpose of constructing, reconstructing and repairing the highways therein enumerated, was passed pursuant to the provisions of Section 7419, General Code, which reads:

“When one or more of the principal highways of a county, or part thereof, have been destroyed or damaged by freshet, land-slide, wear of watercourses, or other casualty, or, by reason of the large amount of traffic thereon or from neglect or inattention to the repair thereof, have become unfit for travel or cause difficulty, danger or delay to teams passing thereon, and the commissioners of such county are satisfied that the ordinary levies authorized by • law for such purposes will be inadequate to provide money necessary to repair such damages or to remove obstructions from, or to make the changes or repairs in, such road or roads as are rendered necessary from the causes herein enumerated, they may annually thereafter levy a tax at their June session, not exceeding five mills upon the dollar upon all taxable property of the county, to be expended under their direction or by the employment of labor and the purchase of materials in such manner as may seem to them most advantageous to the interest of the county, for the construction, reconstruction or repair and maintenance of such road or roads or part thereof.”

This statute has been in force many years, and, under authority thereby conferred, taxes have been levied to meet the expense of repairing roads which had become unfit for travel by reason of previous neglect or inattention to repairs thereof, as well as to meet the expense of restoring roads destroyed or damaged by freshet, landslide, wear of watercourses, or other casualty.

The important question presented in this case is not whether a valid levy of taxes has been made for any -of the purposes stated in Section 7419, General Code; but whether, in making that levy, cognizance must be taken of the Smith one per cent, law, being Sections 5649-2 to 5649-5b, General Code, and the levy made subject to the restrictions and within the limitations there prescribed.

The Smith one per cent, law was enacted in response to a popular demand for legislative action fixing a definite restriction and limitation upon the rate of tax levies, for the evident purpose of limiting the expenditure of public funds and bringing about a more just return and valuation of property for the purposes of taxation. It provides in substance that the maximum rate of taxes that may be levied for all purposes, upon the taxable property within a taxing district, shall not in any one year exceed ten mills on each dollar of the tax valuation of the taxable property of such taxing district for that year. The legislature evidently deemed it necessary to relieve from such express limitation any levies which might become imperative by reason of conditions which could not reasonably be foreseen and which could not be met by the ordinary levies; hence the enactment of Section 5649-4, General Code, which is as follows:

“For the emergencies mentioned in sections forty-four hundred and fifty, forty-four hundred and fifty-one, fifty-six hundred and twenty-nine, seventy-four hundred and nineteen and 7630-1 of the General Code, the taxing authorities of any district may levy a tax sufficient to provide therefor irrespective of any of the limitations of this act.”

The primary question presented by the demurrer to the petition is whether the word “emergencies” in this section embraces all the purposes for which taxes may be levied under authority of Section 7419; or, in other words, whether Section 5649-4 must be regarded as a legislative declaration that all levies authorized by Section 7419 are emergency levies. In view of the legislative policy declared by the enactment of the Smith one per cent, law, the manifest purpose of which is to restrict the power of levying taxes and thus limit expenditure by administrative officers, statutes purporting to permit departures from that general policy and authorizing exemption therefrom will be strictly construed, and no tax should be levied in excess of the limitation definitely prescribed unless it is clearly exempted from the provisions of the restrictive statute by the legislature itself. The legislative policy plainly disclosed should not be thwarted by adverse construction of the statute or by judicial amendment of its terms, no matter how laudable the purpose may seem.

The conditions which it is claimed in this case constitute an emergency are that the principal highways enumerated, by reason of a large amount of traffic and by reason of neglect and inattention to the repairs thereof, have become unfit for travel and cause difficulty, danger and delay to teams passing thereon. Do such conditions constitute an emergency ?

The word “emergency” as used in this statute is to be taken in its natural, plain, obvious and ordinary signification. The Century Dictionary defines it as follows:

(1) “A sudden or unexpected happening; an unforeseen occurrence or condition; specifically, a perplexing contingency or complication of circumstances.”
(2) “A sudden or unexpected occasion for action; exigency; pressing necessity.”

. It is difficult to conceive of a road becoming out of repair from any cause other than one of those enumerated in Section 7419, to-wit, freshet, landslide, wear of watercourses, or other casualty, or by reason of the large amount of traffic thereon, neglect or inattention to repair. Roads requiring reconstruction or repair are of two general classes, the first embracing those roads which have been destroyed or damaged by freshet, landslide, wear of watercourses, or other casualty, any one of which conditions comes within the term “emergency” as above defined; the second, those roads which by reason of the large amount of traffic thereon or from neglect or inattention to the repair thereof have become unfit for travel or cause difficulty, danger or delay to teams passing thereon. It seems quite probable that the legislature must have had this classification in mind when in Section 5649-4 it used the term “emergencies.” The condition occasioned in a manner stated in our first classification constitutes an “emergency.” It is the result of a sudden or unexpected happening, an unforeseen occurrence, an extraordinary condition; while a condition arising under our second classification has to do only with injuries resulting naturally and necessarily from the use of the roads, or from mere neglect or inattention of the county commissioners, which could readily have been foreseen and cared for by the usual and ordinary methods. The one condition is extraordinary and unforeseen, the other natural, usual and to be expected. The one class constitutes an emergency, the other certainly does not. The legislature must have recognized this distinction and must have regarded some of the purposes enumerated in Section 7419 as not being emergencies, and for that reason did not exempt the entire section from the limitations of the Smith one per cent, law but did exempt only the “emergencies mentioned” therein. Some such language as “the limitations of this act shall not apply to Sections 4450, 4451, 5629 and 7419,” etc., would undoubtedly have been employed by the legislature had it intended to provide that all levies authorized by those sections should be made irrespective of the limitations of the Smith one per cent. law. Had that been the desire of the legislature it would not have chosen the specific language “emergencies mentioned,” but in , all probability would have used some broader and more comprehensive form of expression, such as above indicated.

If all the conditions enumerated in Section 7419 are to be regarded as emergencies, a board of county commissioners may designedly permit roads to become out of repair, and then treat their own failure, neglect and inattention as constituting an emergency, and thus evade the express limitations of the Smith law. The word “emergencies” thus used would mean a sudden or unexpected happening or unforeseen occurrence or condition and would also mean a condition gradually created, and therefore expected and foreseen by those whose very neglect and inattention had caused it. This absurd conclusion is necessarily reached by the adoption of the theory that all of the purposes mentioned in Section 7419 are emergencies. It has been urged, however, .that the legislature evinced a design to designate as emergency levies all levies made under authority of the sections referred to in Section 5649-4, and that further inquiry into the meaning of the term “emergencies” is thereby precluded. Let us, therefore, examine the other sections enumerated in Section 5649-4.

Section 4450 authorizes municipalities to borrow money and levy a tax to meet the expenses necessary in case of the prevalence of a dangerous communicable disease.

Section 5629 provides for a special levy to meet the expense of rebuilding the county infirmary or children’s home when the same has been destroyed by fire or other casualty.

Section 7630-1, which was enacted in 1913, makes provision for the rebuilding of schoolhouses destroyed or damaged by fire or other casualty.

All will agree that the conditions set forth in these three sections are emergencies. The same cannot be said of Section 4451, General Codé, but it must be conceded that if the term “emergencies” embraces all the conditions and situations set out m Section 7419 it must follow that all the purposes for which taxes are levied under Section 4451 are likewise emergencies and may be made outside of the limitation prescribed. Section 4451 provides as follows:

“When expenses are incurred by the board of health under the provisions of this chapter, upon application and certificate from such board, the council shall pass the necessary appropriation ordinances to pay the expenses so incurred and certified. The council may levy and set apart the necessary sum to pay such expenses and to carry into effect the provisions of this chapter. Such levy shall, however, be subject to the restrictions contained in this title.”

Authority is conferred, by this section to make a levy and set apart a sum necessary to carry into effect the provisions of “this chapter,” and the chapter referred to includes practically all provisions of the statutes relative to health and sanitation. An examination of that chapter discloses that the expenses there authorized to be incurred include such items as regular compensation of appointees of the board of health, and all expenses incident to the ordinary routine work of such board, including registration of births and deaths and many other items of expense which would be incurred in the ordinary administration of the board’s affairs. It necessarily follows that if all purposes for which levies are authorized by Section 4451 are to be regarded as emergencies, then the entire levy of a municipality for the health fund would be exempted from the limitations of the Smith law, which result certainly could not have been intended.

The conclusion is irresistible that, having reference to Section 4451, the legislature must have contemplated that some of the expenses required to be incurred would result from unforeseen and extraordinary conditions, constituting emergencies, while other expenses would be incurred in the usual and ordinary course of administration and could not in any sense be regarded as emergencies.

It follows that Section 5649-4, General Code, cannot be construed as a legislative declaration that all the conditions enumerated in the sections referred to therein are emergencies for which taxes may be levied in excess of the limitation prescribed; that levies made under authority of Section 7419 are exempt therefrom only when required to meet extraordinary conditions resulting from some unexpected or unforeseen occurrence or circumstance, such as the destruction of or damage to a principal highway by freshet, landslide, wear of watercourses or other casualty; and that, on the other hand, neglect or inattention of public officers to repair highways does not constitute an emergency, and a levy of taxes for the purpose of meeting the expense of reconstruction, repair and maintenance of roads which by reason of such neglect and inattention have become gradually worn out and unfit for travel, even though they cause difficulty, danger or delay, is not exempt as an emergency levy.

The levy certified by the county commissioners in the case before us is consequently not a valid levy for emergency purposes, and should not be placed upon the tax list. The demurrer to the petition is sustained.

Demurrer sustained.

Johnson, Wanamaker, Newman and Jones, JJ., concur.

Donahue, J.,

dissenting. Section 7419, General Code, was enacted for the sole purpose of meeting extraordinary conditions. That section authorizes a levy to be made under its provisions only when the ordinary levies authorized by law for road purposes are not adequate to make the necessary repairs.

The word “emergency” naturally and necessarily includes extraordinary situations or conditions that cannot be met and mastered in the ordinary and usual way.

It is the unsafe condition of the principal highways of a county, and not the causes that produced that condition, that presents an emergency to the public authorities whose duty it is to. keep the roads in repair and safe for public travel, yet who cannot do so with the proceeds of the ordinary levy at their disposal.

An emergency, as defined by lexicographers, is not merely a sudden and unexpected happening, an unforeseen occurrence or condition, but includes also ' “a pressing necessity” or “exigency.” “Exigency” is defined as “a case demanding immediate action, supply, or remedy.”

If the fact that one of the principaThighways of a county has become unfit and unsafe for travel does not present a case demanding immediate action or remedy, regardless of how this condition came about, then of course this writ should be refused.

It is conceded that if the dangerous condition of the highway had been caused by a freshet, landslide, the wear of watercourses, or other casualty, then a situation would be presented demanding immediate remedy, for which purpose this extraordinary levy might be made; but it is held that if such dangerous condition of the highway were caused by neglect or inattention no such exigency would be presented, notwithstanding the conditions confronting the board of county commissioners and the traveling public would be exactly the same in the latter as in the former case.

The consequences that must follow such a construction, if relief is not afforded by further legislation, will be intolerable.

Under the provisions of Section 7419, General Code, the board of county commissioners is required to find, first, that a principal highway of the county has become unfit for travel, or will cause difficulty, danger or delay to teams passing thereon, and, second, that the ordinary levies authorized by law will be inadequate to remedy these defects.

The finding of the board of county commissioners on these two important questions, in the absence of fraud, collusion, or abuse of discretion, must be accepted as a final determination of the truth of these facts, not only by the public, but by the courts of this state.

It follows, then, that notwithstanding these findings of facts by the board of county commissioners, that under the construction given this statute by the majority of this court there is no possible way open to the board of county commissioners to remedy the dangerous and defective condition of the highway. The public must continue to travel it at the risk of injury to person and property, and rely upon recovering from the county damages for any such injury; or the highway must be abandoned forever.

It would seem unnecessary to say that this was not the intention or the purpose of the general assembly of Ohio when it passed the legislation providing for road repairs.

In the construction of a statute, consideration should be given to all other legislation upon the same subject-matter, and if possible the whole should be harmoniously construed, so as to provide a practical working plan for the accomplishment of the purposes intended.

The commissioners of a county are required to keep its principal highways in repair, free from nuisance, and safe for public travel. It is further provided by statute, Section 2408, General Code, that the board of county commissioners shall be liable^ in its official capacity, for damages for its failure to do this.

It would hardly seem possible that the legislative department of our government intended to require the commissioners of a county to keep the public highways in a safe condition for public travel, provide that the county should be liable in damages for failure to do so, and then withhold from the board of county commissioners the means of performing the duties imposed upon it. Such a penny-wise-pound-foolish policy would not only shortly bankrupt a county treasury, but would endanger lives and impose the hardship of primitive road conditions upon the people of our state.

It has been suggested that if a levy were permitted under this statute, when by reason of neglect or inattention to repairs a highway had become in such a dangerous and unfit condition for travel that the ordinary levies authorized by law for the purpose would be inadequate for such repair, county commissioners would designedly permit roads to become out of repair and then treat their own failure, neglect and inattention as constituting an emergency.

This might be a good argument to the lawmaking power of the state, but it is no argument to a court in the construction of this statute. Whether wisely or unwisely, the legislature has committed to the board of county commissioners authority to determine the facts prerequisite to the validity of this extraordinary levy.

The Smith one per cent, law was enacted in response to a popular demand for economy in the administration of public affairs, but a careful scrutiny of this law discloses that it was aimed at extravagance in the current ordinary expenses of administration, and wisely exempted from its provisions not only past indebtedness but also such extraordinary expenses as could not in the very nature of things be anticipated and included within a just limitation.

The general assembly of Ohio in enacting this law recognized that the very life of the law depended upon exempting from its operation not only the inherited burdens of past extravagance but also extraordinary and unforeseen expenses, the amount of which could not be estimated in advance. Every time the proceeds of a levy for current expenses, made under the limitations of this law, is burdened with extraordinary and unusual expenses, the enemies of the law are furnished with an additional argument for its repeal.

The original Smith one per cent, law, construed in accordance with the evident intent of the general assembly responsible for its passage, was safe from assault, for it furnished a sufficient income to meet all reasonable current demands and effected a salutary economy in reference thereto.

A subsequent legislature, however, amended the law, by bringing within its limitations all past indebtedness. The result has been that in many taxing districts of the state the amount that the original Smith one per cent, law permitted to be levied for current expenses has been practically exhausted in the payment of prior indebtedness, leaving present administrations without funds to meet the necessary and ordinary expenses of government. Add to this the further burdens of extraordinary expenses that never were intended to come within the limitations of this law, and the existence of this measure, the most salutary ever enacted to restrain official extravagance and protect the public from exorbitant tax levies, is still further imperiled.

Aside from these considerations, it is evident that Section 5649-4, General Code, recognized and declared that the purpose named in Section 7419, General Code, for which an extraordinary tax might be levied, is an emergency within the contemplation of that provision of the statute exempting this levy from the limitations imposed by it.

The weakness of the argument in support of a separation of this statute (Section 7419) with reference to causes instead of the condition to be remedied, is sought to be strengthened by the claim that the levies authorized by the other sections referred to in Section 5649-4, General Code, may' be divided with reference to the purposes for which such levies are authorized.

While in no wise important to the disposition of this case, it is by no means certain that any of the other sections named in Section 5649-4 should be given a different construction. It is conceded that the conditions named in Sections 4450, 5629, and 7630-1, General Code, are emergencies. This leaves but two other sections, the one under consideration and Section 4451.

While the language used in Section 4451, General Code, would seem to bring within its terms all expenses that might be incurred by the board of health under the provisions “of this chapter,” yet other sections of the same chapter show conclusively that this sectipn can not be so construed; otherwise the further legislation in the same chapter, authorizing the issue of bonds and the levy of a tax to meet the same, and for a “sanitary fund,” in addition to all other levies authorized by law, would be meaningless.

Section 4451 also authorizes a levy “to carry into effect the provisions of this chapter.” This adds nothing to the earlier provision of this section that “when expenses are incurred by the board of health under the provisions of this chapter,” etc., but merely restates the same provision in different language.

If it were conceded, however, that Section 4451, General Code, as it now reads, authorizes a levy for all the expenses incurred under the provisions of this chapter, it by no means follows that the purposes for which these expenses are incurred are not emergencies within the meaning of Section 5649-4, General Code.

The board of health of a municipality is not a mere local agency for local purposes, but on the contrary is a part of a system for the administration of the police power of the state for the conservation of the lives and health of its citizens. If a municipality fails or refuses to establish a board' of health or appoint a health officer, the state board of health may appoint a health officer for the municipality and fix his salary and term of office, and his salary as fixed by the state board of health, and all necessary expenses incurred by him in the performance of his duties, shall be paid by and be a valid claim against such municipality, regardless of its other needs.

Section 4451, General Code, authorizes but a single levy for expenses incurred by the board of health under the provisions of that chapter, part of which are admittedly emergencies. The council in making this levy is not required to make separate levies for separate purposes, or to specify how much is levied for one purpose or how much for another. The levy is but one item and for but a single purpose. If, then, Section 5649-4 is to be construed as exempting only a part of that levy from the limitation of the Smith one per cent, law, how is that part to be ascertained? Evidently not from the levy itself, for, as construed by a majority of this court, that is a levy for all the expenses incurred by the board of health under the provisions of that chapter. The general assembly when it passed the Smith one per cent, law rtiust have considered as emergencies the purposes for which the entire levy is authorized, otherwise it would have provided for a separation of the levy into different levies for different purposes, so that the character of each could be easily determined. As it now stands, either all of this levy must come within the exemption provided in Section 5649-4, General Code, or none of it.

Regardless, however, of whether the levy authorized by Section 4451, General Code, may be separated with reference to the purposes for which the levy is made, that cannot affect the construction of Section 7419, General Code, for in the last analysis that section authorizes a levy for but one purpose, and that purpose is the immediate remedy of a defective and dangerous condition of a principal highway of the county, when the ordinary levies for road repairs are not adequate for such purpose. It is a condition, not the cause, that demands immediate remedy.

For these reasons I am unable to concur in the judgment entered by a majority of this court in this case.


author: Wanamaker, J.

text:
    Wessell v. Timberlake.

      Constitutional law — Police power — Regulation of chattel and salary loans — Section 6346-1 et seq., General Code (106 O. L., 281) —License by superintendent of banks.

      1. Chattel loans on mortgage security or otherwise, the rate of interest on such loans, and the ways and means of assigning wages, are proper subjects for the exercise of the police power by the general assembly of the state.
    2. Section 6346-1 et seq., General Code (106 O. L., 281), is a constitutional exercise of police power by the general assembly of Ohio. The provision in Section 6346-2 of said act, in so far as it relates to the revocation of a license issued pursuant to the act, is reserved for future consideration in cases in which such question may properly be raised.
    (No. 15297
    Decided November 21, 1916.)
    Error to the Court of Appeals of Hamilton county.
    On September 17, 1915, plaintiff in error, Herman Wessell, was arrested by a constable, Charles L. Timberlake, charged with violation of Section 6346-1, General Code (106 O. L., 281), in that said Wessell “did on or about the 17th day of September,- 1915, in the county of Hamilton and state of Ohio, unlawfully” etc., engage and continue in the business of making loans on plain notes at a charge or rate of interest in excess of eight per cent, per annum, without a license.
    On the same date Wessell was brought before the common pleas court of Hamilton county on a writ of habeas corpus, and the sole ground upon which it was sought to have him released was the alleged unconstitutionality of the law under which he was arrested.
    On April 28, 1916, the common pleas court, by its judgment entry, declared this law valid, and on May 3, 1916, the judgment of the common pleas court was duly affirmed by the court of appeals. Proper exceptions were taken by plaintiff in error to the judgments rendered.
    The only questions to be discussed are those which pertain to the validity of the provisions of the act known as the “Loan Law,” which act is as follows:
    “Sec. 6346-1. It shall be unlawful for any person, firm, partnership, association or corporation, to engage, or continue, in the business of making loans, on plain, endorsed, or guaranteed notes, or due bills, or otherwise, or upon the mortgage or pledge of chattels or personal property of any kind, or of purchasing or making loans on salaries or wage earnings, or of furnishing guarantee or security in connection with any loan or purchase, as aforesaid, at a charge or rate of interest in excess of eight per centum per annum, including all charges, without first having obtained a license so to do from the superintendent of banks and otherwise complying with the provisions of this act.

      “Sec. 6346-2. Any person, firm, partnership, corporation or association desiring to obtain a license, shall apply therefor, under oath, on forms prescribed by the superintendent of banks; and by paying annually to the superintendent of banks, a license fee in the sum of one hundred dollars, shall be entitled to obtain a license, which license fee shall include the entire cost of inspection, or inspections, for a period of one year. The said license shall be issued by the superintendent of banks, and shall expire the first day of March, next following the date of its issuance, except that the fee of one hundred dollars herein provided shall be apportioned for that part of the year 1915 remaining after the date when this act shall become law, but thereafter no abatement of said charge shall be made if licenses are issued for less than one year, and no other or further license fee shall be required from any such licensee, by the state or any municipality nor shall any fees or charges be collected under section 736 of the General Code. Every such license and bond hereinafter provided for shall be renewed annually on the first day of March in each year. No license shall be granted to any person, firm, partnership, corporation or association unless, and until, such applicant shall, in writing, and in due form, to be first approved by and filed with the superintendent of banks, appoint an agent, a resident of the state of Ohio, and county where his office is to be located, upon whom all judicial and other process, or legal notice, directed to such applicant may be served; and in case of the death, removal from the state, or any legal disability or disqualification of any such agent, service of such process or notice may be made upon the superintendent of banks. The said superintendent of banks may revoke any license, if the licensee, his officers, agents, or employes shall violate any of the provisions of this act. Whenever, for any cause, such license is revoked, said superintendent of banks shall not issue another to said licensee until the expiration of at least one year from the date of revocation of such license. Every such applicant shall execute and file a bond to the state of Ohio in the penal sum of two thousand dollars with the superintendent of banks, to be approved by him, for the faithful observance of all provisions of this act. Any person claiming to be injured by a violation of this act by a licensee may maintain an action on said bond. ,
    “Sec. 6346-3. Application for a license shall state fully the name or names, and address, of the person or corporation, and of every member of the firm, partnership, or association authorized to do business thereunder, and the location of the office or place of business in which the business is conducted; and in the case of a corporation, shall also state the date and place of its incorporation, the name and address of its manager for the period for which the license is issued, and the names and addresses of its directors for the period for which the license is issued, and the name and address of the agent as provided in section 6346-2 of this act. Such license shall be kept posted in a conspicuous place in the office where the business is transacted. No person, firm, partnership, corporation or association so licensed, shall transact or solicit business under any other name. Not more than one office or place of business shall be maintained under the same license. But in case of removal, the superintendent of banks, may, on application, endorse thereon a transfer to the new place of business, with the date of transfer, and from the time of such endorsement, the new place so designated shall be deemed the place designated in the license.
    “Sec. 6346-4. The superintendent of banks shall, either personally, or by such person or persons as he may appoint for the purpose, at least once a year, and oftener, if he deems it advisable, investigate the business and affairs of every such licensee, and for that purpose shall have free access to the vaults, books and papers thereof, and other sources of information with regard to the business of such licensee and whether it has been transacted in accordance with this act. Said superintendent of banks, and every examiner appointed by him, shall have authority to examine, under oath or affirmation, any person whose testimony may relate to the business of any such licenseé or alleged violator herein.
    “Sec. 6346-5. No such licensee or licensees shall make a loan or purchase or furnish guaranty, or security, as hereinbefore provided at a greater total charge, including interest, than three per cent, per month; except that on loans that'do not exceed fifty dollars in amount, in whatever manner made payable, an inspection fee of not to exceed one dollar may be collected at the time the loan is made, when such loan is made for a period of not less than four months; and such inspection fee shall not be imposed upon the same borrower for any new or additional loan made within four months after such charge has been imposed. Said three per cent, per month shall not-be paid in advance and shall be computed on Unpaid monthly balances, without compounding interest or charges. No bonus, fees, expenses, or demands of any nature whatsoever, other than said inspection fee and said total charge of three per cent, per month (which shall include interest) as hereinbefore provided, shall be made, paid, or received, directly or indirectly, for such loans, purchases or furnishing guaranty or security, wage assignments or advancements except court costs upon the actual foreclosure of the security or upon the entry of judgment. Nothing in this act shall apply to pawn brokers who obtain a municipal license as provided in sections 6337 to 6346, inclusive, of the General Code or to national banks or to state banks or any person, partnership, association or corporation whose business now comes under the supervision of the superintendent of banks. No charge or fee shall be made unless the loan is actually made. A copy of this section shall be furnished each borrower at the time the loan is made.
    “Sec. 6346-6. Every person, firm, partnership, corporation or association licensed as herein provided, shall give to the assignor, borrower, or pledger, a statement upon which shall be written in ink, typewritten or printed, the name of the licensee making such loan or purchase, name of the assignor, borrower or pledger, the amount of the loan, the rate or amount of interest charged, the date when the loan is made, and the date when payable; and shall also give the assignor, borrower, or pledger, a receipt for each payment of principal or interest.
    “Sec. 6346-7. No assignment of any salary, wages or earnings, or any part thereof given to secure a loan shall be valid unless the same shall be in writing, signed in person by the person making the same; and if such person is married and living with husband or wife, signed also by the husband or wife of such person, as the case may be. Nor shall any such assignment be valid unless the same shall be in writing and made to secure a debt contracted simultaneously with the execution of such assignment, with all blank spaces therein filled in with ink or typewriting, together with the date, names of the assignor and assignee, the amount for which such assignment is made, together with the rate of interest charged.
    “The term assignment as used in this section shall include every instrument purporting to transfer an interest in or any authority to collect the wages, salary or earnings of such person. Any assignment of wages, salary or earnings, made in accordance with the provisions of this section shall bind the wages, salary or earnings earned or to be earned by the assignor until the loan secured by such assignment and interest thereon is fully paid, but no assignment or conveyance of wages, salary or earnings to be earned in the future given to secure a loan shall be binding for a sum in excess of fifty per cent, of the amount due or to become due the person making such assignment.

      “In order to obtain a priority of any such assignment over any other assignment, the holder thereof, shall deposit a true copy with the recorder of the county where the person making such assignment, if a resident of the state, resides, or if not a resident of the state, then with the recorder of the county where such assignment is made, together with a sworn statement by the holder, his agent, or attorney, of the amount due, and the rate of interest charged. All such assignments shall be filed and preserved by the recorder as provided in section 8562 of the General Code. When so deposited, any such assignment shall have priority over any other assignment subsequently deposited as herein provided.
    “Every such assignment so filed shall be void as against other assignments to creditors of the person making it after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of said period of one year a true copy thereof, together with a sworn statement by the holder thereof, his agent or attorney, of the amount then due and rate of interest charged is refiled with the county recorder as herein provided.
    “A sworn copy of such assignment so filed together with a statement of the amount due filed with any employer of the assignor shall bind not exceeding fifty per cent, of any salary, wages or earnings due or to become due such assignor from the time the same is filed with such employer until any such loan and interest is fully paid and discharged.

      “Sec. 6346-8. Any person, firm, partnership, corporation or association, and any agent, officer or employee thereof, violating any provision of this act, shall for the first offense be fined not less than fifty dollars nor more than two hundred dollars and for a second offense not less than two hundred nor more than five hundred dollars, and imprisoned for not more than six months. The superintendent of banks upon such second conviction shall revoke any license theretofore issued to such person, firm, partnership, corporation or association. Any instruments taken in connection with the transaction upon which the conviction is made, shall be illegal, void and of no effect, and it shall then be the duty of the superintendent of banks to so notify the borrower in writing. Any charge of interest paid in excess of that provided herein may be recovered by the payor in an action at law.
    “Sec. 6349-9. The superintendent of banks shall enforce the provisions of this act, make all reasonable effort to discover alleged violators, notify the proper prosecuting officer whenever he has reasonable grounds to believe that a violation has occurred, act as complainant in the prosecution thereof, aid such officers to the best of his ability in such prosecution, and make a separate report to the governor at the end of each fiscal year. The superintendent of banks shall employ the assistant or assistants necessary, in his judgment, to make the investigation and inspection provided for in this act.

      “Sec. 6346-10. Any licensee, or licensees, who holds a license under the provisions of sections 6346-1, 6346-2, 6346-3, 6346-4, 6346-5, 6346-6 and 6346-7, of the General Code, inclusive, which has not yet expired, and who shall present his license for cancellation to the superintendent of banks herein, shall receive therefor a credit in the amount of ten dollars, and the superintendent of banks shall credit the same upon the license herein.
    “Section 2. Should any section or provision of this act be decided by the courts to be unconstitutional or invalid, the same shall not affect the validity of the act as a whole or any part thereof, other than the part so decided to be unconstitutional.
    “Section 3. That original sections 6346-1, 6346-2, 6346-3, 6346-4, 6346-5, 6346-6 and 6346-7 of the General Code, inclusive, and all other acts or parts of acts inconsistent with this act be, and the same are hereby repealed:”

      Messrs. Miller & Foster, for plaintiff in error.

      Mr. Edward C. Turner, attorney general; Mr. Hanby R. Jones; Mr. George B. Okey; Mr. Hugh Huntington; Mr. E. G. Lloyd; Mr. John J. Chester and Mr. Albert M. Calland, for defendant in error.
   Wanamaker, J.

It is claimed that the foregoing statute, known as the “Loan Law,” violates the following provisions of the Constitution of Ohio:

Section 1, Article I. “All men * * * have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property.”
Section 16, Article I. “All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.”

It is further claimed that this act violates the provisions of Section 1 of the 14th Amendment to the Federal Constitution, which reads in part:

“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.”

Plaintiff in error in his brief gives the following bill of particulars as a basis for the claim of unconstitutionality:

(a) “It gives authority to the superintendent of banks to revoke a license if the licensee violates ‘any of the provisions of this act.’ ”
(b) “The superintendent of banks is made the sole and final judge as to whether or not any violation has taken place. There is no provision for an appeal to the courts or otherwise.”
(c) “There is nothing to prevent the bank superintendent from holding an unfair and ex parte hearing, and in fact, he would not have to hold any hearing at all, but could arbitrarily revoke the license.”
(d) That the exemptions and classifications provided for in such statute are arbitrary and unreasonable, and therefore deny due process of law and the equal protection of the laws.

The chief case relied upon by plaintiff in error to sustain his contentions is Geiger-Jones Co. v. Turner, Atty. Genl., as found in a lengthy opinion of the United States district court, reported in the Ohio Law Reporter under date of April 17, 1916.

It must be conceded that if that judgment and opinion correctly interpreted the various constitutional provisions involved, and correctly applied them to the statute in question, that judgment and the reasons therefor would apply in the case at bar and demand a reversal of the judgments below; for, in the main, the alleged grievances in the so-called “Blue Sky Law” are substantially the same as the alleged grievances in the “Loan Law.”

Since the submission of this case to this court, and prior to the preparation of this opinion, the United States supreme court has reviewed the decision in the Geiger-Jones case and, with but one judge dissenting, has reversed said judgment. The reversal is clear and comprehensive on practically all the various grounds set forth in the opinion of the United States district court.

The opinion of the supreme court of the United States is very illuminating upon many of the questions involved in this case.

If the loan-act statute be a constitutional exercise of governmental power, it is conceded that it is so by virtue of what is known as the police power of the state.

Definitions of police power, giving with precision its latitude and longitude with exactness, have not been attempted by any courts. It is wise that it is so, because this, like many of the subject-matters of the law, is constantly in the process of evolution and development, and must be adapted to the social, industrial and commercial conditions of the times.

The police power in effect sums up the whole power of government. All other powers are only incidental and ancillary to the execution of the police power. It is that full, final power that is involved in the administration of law as a means to the administration of practical justice.

Mr. Justice Day in a well-considered opinion has discussed the police power at some length. His views are helpful in this case.

In Sligh v. Kirkwood, 237 U. S., 52, at page 58, he discusses the nature and scope of this power in the following language:

“The limitations upon the police power are hard to define, and its far-reaching scope has been recognized in many decisions of this court. At an early day it was held to embrace every law or statute which concerns the whole or any part of the people, whether it related to their rights or duties, whether it respected them as men or citizens of the state, whether in their public or private relations, whether it related to the rights of persons or property of the public or any individual within the state. New York v. Miln, 11 Pet. 102, 139. The police power, in its broadest sense, includes all legislation and almost every function of civil government. Barbier v. Connolly, 113 U. S. 27. It is not subject to definite limitations, but is coextensive with the necessities' of the case and the safeguards of public interest. Camfield v. United States, 167 U. S. 518, 524. It embraces regulations designed to promote public convenience or the general prosperity or welfare, as well as those specifically intended to promote the public safety or the public health. Chicago &c. Railway v. Drainage Commissioners, 200 U. S. 561, 592. In one of the latest utterances of this court upon the subject, it was said: ‘Whether it is a valid exercise of the police power is a question in the case, and that power we have defined, as far as it is capable of being defined by general words, a number of times. It is not susceptible of circumstantial precision. It extends, we have said, not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general' prosperity. * * * And further, “It is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government.” ’ Eubank v. Richmond, 226 U. S. 137, 142.”

The title of the original loan act is as follows:

“To regulate and license the loaning of money upon chattels or personal property of any kind and of purchasing or making loans upon salaries or wage earnings.” (102 O. L., 469.)

In the main, so far as it applies to the case before us, it is an act to prevent usury.

. The right to regulate the rate of interest by law is as old as government itself.

“The taking of interest for the loan of money, or at least taking excessive interest, has been regarded with abhorrence from the earliest times. We are told that such usury was prohibited by the early laws of the Chinese and the Hindus, and by the Koran.” 39 Cyc., 889.

Moses announces it as follows:

“If thou lend money to any of my people that is poor by thee, thou shalt not be to him as an usurer, neither shalt thou lay upon him usury.” Exodus XXII, 25.

Originally the word “usury” applied to all rates of interest. Later it was applied only to illegal or excessive rates of interest.

' It is significant that Abraham Lincoln in 1832, when he was but twenty-three years of age, in a campaign for the general assembly of Illinois, declared in an open circular to the people of his county that usury was then an obnoxioüs practice in the state of Illinois and that he stood for a law against it.'

Legislation against usury has been recognized by all the leading nations of the world from time almost immemorial. Excessive or usurious rates of interest assessed or charged against the poor and needy, against those whose small incomes are too often wiped away by illness, enforced idleness or financial reverses, have been vigilantly denounced by the laws of all lands.

It would seem now too late to challenge the constitutionality of shch legislation upon the ground that it is a denial of the right of property or liberty of contract.

The right of property, or liberty of contract with reference to property, is by our own constitution made “subservient to the public welfare.” Where, therefore, a statute seeks to accomplish such purpose as prevention of usury, such statute is clearly within the police power of the state of Ohio under the provisions of both the state and federal constitutions, unless some part of the machinery for its administration may violate some provision of state or federal constitution.

It is, however, suggested, from the title of the act, that the statute and the various sections thereof do not constitute a regulation of interest rates, but really undertake to regulate business, indeed to prohibit the same, and as such are a denial of the right of property — the taking of property without due process of law.

While the right of a state to regulate business, trade or occupation is of much later recognition and development than the right to regulate the rate of interest, it nevertheless is equally well settled to-day, that, in the interest of the public welfare, business, trades and occupations may be so regulated as to prevent extortion, fraud, restraint, monopolistic control of products or prices, and so on.

Whether or not the business of chattel loans is fairly within the police power of the state is no longer an open question in Ohio. This court in Sanning v. City of Cincinnati, 81 Ohio St., 142, in the first paragraph of the syllabus in that case, has stated the generally accepted doctrine:

“The state may, in the exercise of the police power, license and regulate chattel mortgage and salary loan brokers; and it may delegate authority to do so to municipal corporations.”

So it matters not whether the purpose of the statute be the regulation of a business or the denouncement of usury; in either event the paramount purpose of the statute is within the legal exercise of the police power of the state.

We come now to consider the second question as to whether or not the plans and provisions of the statute for the promotion of such purposes are a legal exercise of such police power.

The legal machinery provided by the statute for the enforcement of its provisions obviously must be operated by some officer or board. The statute designates the superintendent of banks as such officer. He grants the license provided for by the act, and agreeable to the act may revoke a license. He is merely the executive of the state for the enforcement of the statute, and the presumption surely is that he would exercise his discretion fairly and justly and in accordance with the purpose, terms and spirit of the act.

No serious claim is made that the provisions of the statute relating to the granting of licenses are in any wise unconstitutional, particularly because of any broad discretion or arbitrary power lodged in such superintendent of banks touching the issuing of licenses. The statute in this respect practically deprives him of the exercise of any discretion and recognizes him only as a ministerial officer.

Section 6346-2 provides for the application for such license, the payment of the fee of $100 therefor, and the term of such license. No complaint is made that the license fee is unreasonable, or that any of the provisions expressed in the statute for the issuing of the license are arbitrary or unreasonable.

But it is claimed that the classifications and exemptions made by the statute, as to those required and not required to obtain licenses, render the statute null and void; because, it is claimed, such do not give the petitioner the “equal protection of the laws.”

Naturally questions of this character are more frequently before the United States supreme court, under the due-process and equal-protection-of-the-laws clauses of the 14th Amendment, than in any other court of last resort. That court has passed upon these questions very frequently and - very recently in a number of celebrated and well-considered cases. One of the most recent cases is that of Rast v. Van Deman & Lewis Co., 240 U. S., 342, known as the Trading Stamp case.

Mr. Justice McKenna in his opinion in that case lays down the correct doctrine that has been generally followed by the United States supreme court, and most of the state courts. The lower courts in the trading stamp cases had held that the use of coupons, or trading stamps, was only a mode of legitimate advertising, and that no distinction could be made as between business men who used such trading stamps and the business men who did not use such trading stamps.

. Mr. Justice McKenna upon that point, at page 357, uses this language:

“The difference between a business where coupons are used, even regarding their use as a means of advertising, and a business where they are not used, is pronounced. Complainants are at pains to display it. The legislation which regards the difference is not arbitrary within the rulings of the cases. It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed, Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. It makes no difference that the facts may be disputed or their, effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety. Chi., Burl. & Q. R. R. Co. v. McGuire, 219 U. S. 549; German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 413, 414; Price v. Illinois, 238 U. S. 446, 452.
“It is the duty and function of the legislature to discern and correct evils, and by evils we do not mean some definite injury but obstacles to a greater public welfare. Eubank v. Richmond, 226 U. S. 137, 142; Sligh v. Kirkwood, 237 U. S. 52, 59. And, we repeat, ‘it may make discriminations if founded on distinctions that we cannot pronounce unreasonable and purely arbitrary.’ Quong Wing v. Kirkendall, 223 U. S. 59, 62, and the cases cited above.”

This same doctrine as to classifications and exemptions is reviewed and reaffirmed by Justice McKenna in the Geiger-Jones case, supra, where he quotes from the briefs of counsel for the Geiger-Jones Company, specifying a large number of discriminations urged against the statute wherein the statute undertakes to classify those who are within the statute and those who are exempt from the statute. Upon this question Justice McKenna says:

“We cannot give separate attention to the asserted discriminations. It is enough to say that they are within the power of classification which a State has. A State ‘may direct its law against what it deems an evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed. * * * If a class is deemed to present a conspicuous example of what the legislature seeks to prevent, the Fourteenth Amendment allows it to be dealt with although otherwise and merely logically not distinguishable from others not embraced in the law.’ Central Lumber Co. v. South Dakota, 226 U. S. 157, 160. The cases were cited from which those propositions were deduced. To the same effect is Armour & Company v. North Dakota, 240 U. S. 510, 517.”

This same doctrine is decisive of the case at bar upon the matter of classifications and exemptions in the Loan Law act.

The chief objection to the act, and the most serious one, is that touching the revocation of the license. Section 6346-2 provides:

“The said superintendent of banks may revoke any license, if the licensee, his officers, agents, or employes shall violate any of the provisions of this act.”

No provision is expressly made for any hearing before the superintendent of banks, or for any notice to the licensee as to such hearing, nor is any provision made for attendance of witnesses. Neither is there any provision made for any appeal or review of the action of the superintendent of banks touching any revocation of a license. Manifestly, if any licensee were found guilty of violating any of the provisions of this act in a proper proceeding before a court of competent jurisdiction, such adjudicated violation would doubtless warrant the revocation of a license. But whether or not, independent of any such adjudication, the superintendent of banks is constitutionally authorized to revoke such license upon his own discretion, it is unnecessary here to determine. That question cannot be raised in this case.

Plaintiff in error has refused to apply for a license. He has ignored the act as a whole and refuses to recognize its force and effect as a whole. The question of the constitutional revocation of a license cannot be raised until a license' has been first granted under the provisions of this act. Upon presentation of such case it will then be proper for this court to consider and determine that question.

In so far as the act in question is involved in this case the same is held to be a valid act within the police power of the state and not prohibited by any provision of the Constitution of the United States.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Newman, Jones and Matthias, JJ., concur.