text:
    Jacobs v. Mitchell et al.
    1. The time of payment, as fixed by a note, may be controlled by a separate written agreement made and entered into by the parties at the time of the execution of the note.
    2. A made and delivered to B his promissory note for the payment of a certain sum of money thirteen months after date. They also, concurrently therewith, made and entered into a separate written agreement, that the note should not become due and payable until C (for whom B was acting as agent) should sell for A a certain number of bushels of oats at a certain price.

      Jleld: That an action on the note cannot be maintained until the terms of the concurrent written agreement have been complied with: and, further, that such is the rule in an action by a holder, who acquired his title with notice of the agreement.
    3. The maker, when sued upon a note, may, as a defense, show that it is founded upon an illegal agreement, although.it appears that he is in pari delielo, where the suit is by a party to the agreement, or by one having acquired his title with notice.
    (Decided December 3, 1889.)
    Error to the Circuit Court of Allen County.
    The suit below was brought by the holder against the maker of a promissory note, the holder averring that he became the owner of it for a valuable consideration before it became due. The note is as follows :
    “ $400. December 9, 1884.
    Thirteen months after date I promise to pay to T. J. McElroy or bearer, four hundred dollors, value received, 6 per cent, interest.
    J. W. Jacobs.”
    The questions arise upon a demurrer to the answer, which is as follows:

      First defense. — The said defendant, for amended answer to plaintiff's petition says, that concurrent with the execution and delivery of the note upon which this action is brought, the payee thereof, one T. J. McFlroy, representing himself to be the agent of the “Crawford, Henry & Williams County Bohemian Oats Association,” executed and delivered to said defendant a written agreement, said T. J. McElroy representing to said defendant that he, the said McFlroy, had full authority to bind said company as its agent.
    It is expressly stated in said written agreement, executed and delivered by said McElroy to said defendant, that the note given by said defendant to said T. J. McElroy should not be due and payable, and the amount therein named be called for, until said Bohemian Oats Association should sell for said J. W. Jacobs eighty bushels of Bohemian oats at ten dollars per •bushel.
    This said agreement was taken by said J. W. Jacobs as a part consideratien for the amount named in said note, which ■said Jacobs agreed to pay upon fulfillment of said written .agreement. The only other consideration ever received by ■said Jacobs for said note was 40 bushels of oats, which were -not worth more than 40 cents per bushel when received. The -terms of said written agreement have never been complied with, either by said T. J. McElroy, or the said Oats Association.
    The plaintiffs, before their alleged purchase of said note, knew that said written agreement existed, and had full notice •of the force and intention thereof, and defendant denies that •plaintiffs purchased said note before maturity.

      Second defense. — Said defendant says that the said note upon which this action was brought, was obtained from said defend•ant by one T. J. McElroy (payee) by fraud, and was disposed of by said McElroy fraudulently, and that said fraud consisted of this, to-wit:
    The said T. J. McElroy, on or about the 9th day of December, 1884, represented to said defendant that he was the agent of the “ Crawford, Henry & Williams County Bohemian Oats Association,” and for the purpose of defrauding said •defendant, and to obtain his signature to a promissory note, agreed to deliver to said defendant 40 bushels of so-called Bohemian oats, representing falsely that said oats were of an extraordinary quality and value, when in fact the said oats' were of no more value than oats ordinarily raised by farmers; and for the further purpose of defrauding said defendant, said T. J. McElroy represented and agreed on the part of said •company, that if said defendant would take said 40 bushels of •oats, and deliver to said McElroy his promissory note for the sum of $400, that he, the said McElroy, would hold said note and not dispose of it until after the said Bohemian Oats Company should sell for said Jacobs 80 bushels of oats out of the' next year’s crop at $10 per bushel, and that said note would then, and not until then, have to be paid by said Jacobs.

      Said agreement by said McElroy on tbe part of said, company was in tbe form of a partly written and partly printed' bond, and was delivered by said McElroy to said defendant concurrent with the delivery of said note, who relying on the said false and fraudulent statements of said McElroy, and believing that they were true (when in fact said false representations were made with intent to defraud said defendant by said McElroy), did sign said note, and deliver the same to said McElroy, who, contrary to his said agreement and for the purpose of defrauding said defendant, disposed oí said-note so that defendant might not be able to make any defense thereto. Said agreement by said McElroy to sell, or cause-to be sold by said company, said eighty bushels of oats has not been performed, although the time has long since expired when said oats were to be sold, and said Jacobs retained 80 bushels of said oats, and still retains said oats, for the purpose of performing said contract on his part.
    The plaintiffs, defendant avers, took said note with knowledge of said contract between said McElroy and said defendant ; and defendant further avers that plaintiff is not a bona fide holder of said note.
    Wherefore defendant asks that he may go hence with his costs.
    The demurrer was sustained and judgment rendered for the plaintiff; and, on proceedings in error, the judgment was affirmed by the circuit court.

      James 0. Older, for plaintiff in error.
    This case stands as if between the maker and payee of the note, by the averments of the answer. There was at least a partial failure of consideration. Edwards on Notes and Bills, 3 Ed., sec. 167.
    The note and contract constitute one and the same contract, though on different papers. Carr v. Hays, Cent. Law Jour., vol. 25, p. 32; Shirley v. Welsh, 2 C. C. R. 401-404; Kitchen v. Loudenback, 3 C. C. R. 228; Davis v. Seely, vol. 20 Law Bull. 215,

      Frank E„ Mead, for defendant in error.
    In order that the several agreements shall be construed together as forming one agreement, it must be between the same identical parties; and where, as in this case, an ordinary promissory note, for the unconditional payment of money, at a given time, for a definite amount, was given, it cannot be explained or qualified by any other written instrument, even as between the original parties, unless made at the same time and executed by the same identical parties who executed the note; nor could parol testimony be admitted to qualify the express terms of the note. Webb v. Spicer, 13 Q. B. 886, 899; 66 Eng. C. L. 898; Harley v. Welb, 2 C. C. R. 57; 17 Law Bull. 249.
   Minshall, C. J.

We think the court erred in sustaining the demurrer to the answer of the defendant. The first defense is based upon the non-performance of a contemporaneous written agreement, made and entered into by the parties in regard to the note, and of which, it is averred, the plaintiff had notice when he became the holder of it. He then stands in the shoes of the original payee, McElroy. Although the note stipulates that it is payable thirteen months after date, still this must be controlled, as between parties and holders with notice, by the written agreement, that it is not to become due and payable until th§ association has sold for the maker 80 bushels of oats at the price named. 2 Parsons on Notes and Bills, 144, 534. It is not necessary that an answer should be returned to the question, why the parties should have subjected the absolute stipulation of the note as to the time of payment, to the provisional terms of the written agreement. It is sufficient to say that they have seen fit to do so, and the’ agreement is binding on the holder. The effect of it is to give the maker the right to pay the note according to its terms, or to decline to do so until the terms of the written agreement are complied with, if, in his judgment, it would be more prudent to do so. This branch of the answer, then, states a sufficient defense to the action — non-performance of the agreement.

The case of Webb v. Spicer, 66 Eng. Com. Law, 894, 898, is, when rightly considered, not in conflict with this holding. The point of that decision was, that the written agreement was-not between the parties to the note. Here, it is. The fact that the suit is not between the original parties to the note and agreement, does not affect the question, since the plaintiff' acquired his title'with notice, and stands in the shoes of the original payee

The second defense is based upon the alleged fraud of McElroy in obtaining the defendant’s signature to the note by fraudulent representations as to the value of the oats. As it is also averred that the plaintiff took the note with knowledge of the fraud, the facts averred certainly constitute a defense, and the demurrer should have been overruled.

Neither of these defenses show that the maker was a party to any contemplated fraud upon the public. If the averments be true, and they are admitted by the demurrer, he was simply deceived into the belief that money could honestly be made out of the introduction of a new variety of oats, and the assumption that he was a party to any contemplated fraud on others at the time he executed the note, is inconsistent with the averments of his answer. .

But if the assumption were true, still the illegal character of the consideration might be plead as a defense by the maker to an action on the note by the other party or any holder of it with notice. Complicity in a wrong may defeat a party who, by action, seeks to enforce an executory contract based upon. it, or to obtain affirmative relief against the contract, as by injunction or cancellation; but such complicity does not preclude a defendant from pleading the facts as a defense, although he may be in pari delicto. Roll v. Raguet, 4 Ohio, 400; McQuade v. Rosecrans, 36 Ohio St. 442; Kahn v. Walton, 46 Ohio St. 195, 209.

Judgment reversed, and cause remanded to the court of common pleas, with directions to overrule the demurrer, and for further proceedings.


source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Gordon v. The State. Santoro v. The State.
    Error to tbe Court of Common Pleas of Perry County.
    Error to the Circuit Court of Portage County.

      Local Option.

    The act entitled “An act to further provide against the evils resulting from the traffic in intoxicating liquors, by local option in any township in the State of Ohio,” passed March 3, 1888, is not in conflict with the' constitution, and is a valid law.
    (Decided December 3, 1889.)
    The plaintiffs in error, Basil A. Gordon and Dominico Santoro, were severally indicted under the act entitled, “ An act to further provide against the evils resulting from the traffic in intoxicating liquors, by local option in any township in the state of Ohio,” passed March 3, 1888.
    That act provides as follows :

      “ Section 1. Be it enacted, etc., that whenever one-fourth of the qualified electors of any township, residing outside of any municipal incorporation, shall petition the trustees therefor for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such township, and without the limits of any such municipal incorporation, such trustees shall order a special election for the purpose, to be held at the usual place or places for holding township elections; and notice shall be given and the election conducted in all respects as provided by law for the election of township trustees; and only those electors shall be entitled to vote at such election who reside within the township and without the limits of any such municipal incorporation. A record of the result of such election shall be kept by the township clerk in the record of the proceedings of township trustees; and in all trials for violation of this act, the original entry of said record, or a copy thereof certified by the township clerk, provided that it shows or states that a majority was against the sale, shall be prima facie evidence that the selling, furnishing, giving away or keeping a place, if it took place from and after thirty days from the day of the holding of said election, was then and there prohibited and unlawful.”
    “ Section 2. Persons voting at any election held under the provisions of this act, who are opposed to the sale of intoxicating liquors as a beverage, shall have written or printed on their ballots, “ Against the sale ;” and those who favor the sale of such liquors shall have written or printed on their ballots, “ For the sale;” and if a majority of the votes cast at such election shall be “ Against the sale,” then from and after thirty •days from the day of the holding of said election, it shall be unlawful for any person within the limits of such township :and without the limits of such municipal corporation to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished; and whoever sells, furnishes or gives away any intoxicating liquors as a beverage, or keeps a place where such liquors are kept for sale, given away or furnished, shall be fined not more than five hundred dollars, nor less than fifty dollars, and imprisoned in the county jail not exceeding six months; but nothing in this section shall be construed so as to prevent tbe manufacture and sale of cider, or sale •of wine manufactured from the pure juice of the grape, cultivated in this state, nor to prevent a legally registered druggist from selling or furnishing pure wines or liquors for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes; but this provision shall not be construed to authorize the keeping of a place where wine, cider or other intoxicating liquors are sold, kept for sale, furnished or given away as a beverage.”
    “Section 3. In indictments for violations of this act, it shall not be necessary to set forth the facts showing that the township has availed itself of the provisions of this act, but it shall be sufficient to plead simply that said selling, furnishing, giving away or keeping a place was then and there prohibited and unlawful.”

      Section 4 provides for the return of a ratable proportion of the special liquor tax to the dealer, where the majority of the votes cast at such election shall be against the sale. Section 5 provides for biennial elections under the act. Section 6 provides what shall be deemed a sufficient entry and record of the result of an election under the act. Section 7 provides for the disposition of fines.
    “ Section 8. This act shall take effect and be in force from and after its passage.”
    Jn the case of Gordon v. The State, the indictment charged that Basil A. Gordon on the 22d day of December, 1888, in the township of Pleasant, in the county of Perry, unlawfully sold intoxicating liquors, other than cider, or wine manufactured from the pure juice of the grape cultivated in this state, as a beverage, to divers persons whose names to the jurors were unknown, said selling being then and there prohibited and unlawful, and said selling not being for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes. Gordon moved to quash the indictment for alleged defects in the form of the indictment, and in the manner in which the offense was charged, which motion being overruled and the railing excepted to, he -demurred to the indictment, on the ground, that the facts therein stated did not constitute an offense against the laws of the state, and that the above entitled act of March 3, 1888, is unconstitutional. The demurrer was overruled and exception taken, whereupon, Gordon was put upon trial. The jury returned a verdict of guilty, and he was sentenced to pay fine of fifty dollars and costs of prosecution, and to be imprisoned for the term of fifteen days. The petition in error filed in this court prays, that the above entitled act may be declared unconstitutional, and that the judgment of the court of common may be reversed.
    In the case of Santoro v. The State, the indictment charged, that Dominico Santoro, on or about the 13th day of December, 1888, within Mantua township, in the county of Portage, then and there not being a legally registered druggist, unlawfully sold certain intoxicating liquors, t-o-wit: whisky, to one Frank Kriser, which selling was then and there prohibited and unlawful. Santoro demurred to the indictment. The demurrer was overruled and exception noted. Ho. was then put upon trial; the jury returned a verdict of guilty; and he was sentenced to pay a fine and to be imprisoned.
    The circuit court affirmed the judgment of the court of common pleas, and it is now sought to reverse the judgment of the circuit court, on the-ground, that the above recited act of March 3,1888, is in contravention of the constitution of this state and therefore void..

      Ferguson & Johnston, James B. Betallio, and Matthews &■ Greeve, for plaintiff in error, in the case of Gordon v. The■ State.

    Brief of Ferguson & Johnston and James D. Betallio.

    The act in question is in contravention of the constitution of the state, and, therefore, unconstitutional and void.

      First — It is an act of a general nature and has not a uniform operation throughout the state.

      Second — It is a delegation of legislative power to the people.

      Third — It authorizes the people to suspend or repeal a law, to-wit: The “Dow law,” and enact in its stead another.

      Fourth — It seeks to prohibit the liquor traffic, when the only power the legislature has, is to regulate it.
    ' Section 1 of Article II is substantially the same as in the constitution of 1802, while section 26 of the same article is not to be found in that constitution. ’We here have one of the strongest arguments to maintain our position on the first and second grounds. It is a well-known rule in the construction, either of a statute or constitutional provision, that we arc to look to the condition of things prior to its enactment or adoption, and what was intended by it to remedy or prevent. The origin of section 26, Art. II is perfectly well known. Cass v. Dillon, 2 Ohio St. 617. Every criminal statute of the state is a law of a general nature, and when a law attaches a penalty to the doing of a given act in one township or county of the state, which if done in some other township or county of the-state is lawful, it is not uniform in its operation throughout the state, and is repugnant to the first clause of section 26,. above quoted. Operation is defined in the case of Geebick v. State, 5 Iowa, 491. See also, Maize v. State, 4 Ind. 342; Kelley v. State, 6 Ohio St. 269; Ex parte Van Hagan, 25 Ohio St. 426. This doctrine is also approved in Ex parte Falk, 42 Ohoi St. 641; C., W. & Z. Ry. Co. v. Commissioners, 1 Ohio St. 77.
    The difference between villages, and counties and townships is very apparent; the latter have no legislative power and the legislature has not even implied authority to grant them any; it is, in fact, prohibited from so doing. 16 Ohio St. 55; Art. X, sec. 7, and Art. XIII, sec. 6, of the constitution.
    By the act known as the “'Dow law,” the traffic in intoxicating liquors is regulated and taxed; they may be lawfully sold in the mode described by that act. The act in question in this case submits to the voters of any township to decide whether the “ Dow law ” shall be repealed or suspended in such township, and a criminal prohibition takes its place. State v. Weir, 33 Iowa, 134.
    This act is an inanimate thing — a dead letter. If one-fourth of the electors should not petition, or having petitioned, a majority within the particular township should vote “for the sale” biennially when submitted, the act as a statute has no existence. At bestjt is but an invitation or proposition to the voters of the the several townships to enact within the.ir township a penal statute in violation of sec. 26, Art. II, and at the same time suspend or repeal another statute, to-wit: The “Dow law” in violation of sec. 18, Art. 1. And it will further be remembered that our constitution grants to the legislature the power to regulate, not to destroy, the traffic in intoxicating liquors. Under sec. 18, of schedule above quoted, it may provide against the evils resulting from the traffic, but not to destroy the traffic itself. This question was decided in Miller and Gibson v. The State, 3 Ohio St. 476.
    Having so far examined this act in the light of our own constitution and decisions, except a few references, wc will call the attention of the court to some of the decisions of other states. And before proceeding to them we desire to say, that we are not aware at this time of any constitution of any state having all of the above provisions found in ours, and it will also be important here to note, that our constitution prohibits the licensing of the liquor traffic, and also the prohibition of it; and every state where local option laws have been upheld may license or prohibit the traffic; and we desire here also to say, that in nearly every instance the enactment which was sustained made it unlawful to sell liquors without a license, and affixed a penalty; and the only question submitted to vote was whether a license might issue or not, ánd every well considered case, upholding this class of legislation, condemned, as unconstitutional, the class of legislation to which the act in question in this case belongs. Lammert v. Lidwell, 62 Mo. 188; State v. Morris, 86 N. J. 72; Village v. Howell, 70 N. Y. 291; Groesch v. State, 42 Ind. 547; Lock’s Appeal, 72 Pa. St. 491; State v. Wilcox, 42 Conn. 364; Boyd v. Bryant, 35 Ark. 69 ; Fell v. State, 42 Md. 71; Exparte Wall, 48 Cal. 279; Rice v. Foster, 4 Harr, (Del.) 479; Parker v. Commonwealth, 6 Pa. St. 507; Barto v. Himrod, 8 N. Y. 483; Cooley on Const. Lim. 5 Ed. 139, and cases there cited.
    We claim said act is void upon the following additional grounds:

      Fifth. — There is no mode provided by which the parties can ascertain whether the names on the petition are genuine, or whether they are voters or constitute one-tenth of the voters of the township, and there is no basis upon which to determine the number of petitioners.

      Sixth. — There is no provision that the petition shall be filed or preserved.

      Seventh. — A record of the result of such election is all that is required to be kept, and it is only made prima facie evience of the truth of the matter therein stated; and whether or not the act was in force would be a question of fact in every case, leaving every step taken and act done under it open to contest and interminable litigation. Statutes of such importance can not lawfully be left in such uncertainty.

      In support of these three propositions we refer the court to the case entitled “ In re Hauch," decided by the Supreme Court of Michigan, May 18, 1888, reported in the Northwestern Reporter, Yol. 38, No. 3, page 269. The statute there being on these points, in substance, the same as our act.
    The court erred in overruling the motion to quash the indictment.
    The indictment does not properly or sufficiently allege a sale. The allegation that he sold to divers persons to the jurors unknown, if otherwise good, alleges a duplicity of offenses. Divers in its legal acceptation, means different, and the .allegation stands as though it alleged he sold to different persons. The pleading we have here does not sufficiently inform the accused party of the nature and cause of the accusation. It is too uncertain and affords him no opportunity to make a defense against the omnibus charge. "We think on this ground also that the indictment is bad.

      I. T. Siddall, for plaintiff in error, Santoro.
    1. This proceeding in error is for the sole purpose of determining the constitutionality of the act of March 3, A. D. 1888, known as the “Township Local Option Act.”
    Article II, sec. 1, of the constitution, locates the authority to legislate in the general assembly. The 'general assembly can not delegate its authority, nor avoid the responsibility of law makers, by thrusting it back upon the people. Judge Ranney announced this principle in R. R. Co. v. Comm’rs, 1 Ohio St. 87. See also, Santo v. State, 2 Ia. 203 ; Geebrick v. State, 5 Ia. 492; Meshmeier v. State, 11 Ind. 482; Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, 15 Barb. 123; Bank v. Brown, 26 N. Y. 472; State v. Copeland, 3 R. I. 33; Parker v. Com., 6 Pa. St. 507; State v. Beneke, 9 Ia. 203; State v. Frame, 39 Ohio St. 407-8.
    The legislature has no power to make the operation or enforcement of a law dependent upon the will of the people. Ex Parte, Wall, 48 Cal. 279; State v. Weir, 33 Ia. 134; Maize v. State, 4 Ind. 342; Kelly v. State, 6 Ohio St. 272; Pople v.
      Collins, 3 Mich. 416 ; Barto v. Himrod, 8 N. Y. 492 ; Meshmeier v. State, 11 Ind. 482; Lammert v. Lidwett, 62 Mo. 188.
    The constitutionality of a statute depends upon its operation, and not upon the form it may be made to assume. State v. Hipp, 38 Ohio St. 199; State v. Frame, 39 Ohio St. 412; Butzman v. Whitbeck, 42 Ohio St. 223. An act violating the intent is as much within the purview and effect of a prohibition as if within the letter. District Court Case, 34 Ohio St. 441.
    To have a uniform operation, if enforced at all, it must be wherever the rigjht hand of the law can reach to enforce it, and therefore in full force in every part of the state. Ex parte Van Hagan, 25 Ohio St. 431; Kelley v. State, 6 Ohio St. 269 ; Durkee v. Jonesville, 26 Wis. 697; McGregor v. Bayliss, 19 Ia. 43; N. J. L. 40, page 1; People v. Supervisors, 43 N. Y. 10; Robinson v. Perry, 17 Kans. 248; 68 N. Y. 381.
    All laws, making an act a crime against the state, are laws of a general nature. Ex parte Van Hagan, 25 Ohio St. 431; Kelley v. State, 6 Ohio St. 269; 11 Ind. 482; 4 Ind. 342, and other cases cited above; State v. Winch, 45 Ohio St. 663.
    Judge Thurman announced the evils intended to be overcome by this provision of the consitution, in Cass v. Dillon, 2 Ohio St. 617; approved, 25 Ohio St. 432; McGill v. State, 34 Ohio St. 238. The California and Iowa cases, holding local option unconstitutional, are entitled to great weight as authority. The constitution of Indiana is substantially the same as ours in this respect, and the Supreme Court of that state has held, that local option violates this provision of the constitution of the state.
    The constitutions of New Jersey, Massachusetts and others of the states, where local option and kindred enactments have been sustained in the-courts, are different.
    The cases in those states are based upon police regulations not inhibited by the constitutions of those states. See the argument of Vansickle, Judge, in 36 N. J. 72. But this court has already held and determined, that laws regulating the traffic in intoxicating liquors, so far as bringing them within the crimes act, or making an act in relation thereto criminal, •are not local or police regulations, but are of a general nature. State v. Winch, 45 Ohio St. 663.
    Also, this section of the constitution is mandatory and not directory, and therefore, cannot be evaded or disregarded. Falk Exp., 42 Ohio St. 638.
    Every evil intended to be overcome by this provision of the constitution, as repeatedly announced by this court, may again prevail if this law can stand.

      M. H. Donahue, Prosecuting Attorney, and Reuben Butler, for defendant in error, in the case of Gordon v. The State.

      R. Butler’s brief.
    From an examination of this act it will be seen that the policy of this law has been determined by the legislature, the law in and of itself being complete, and, upon its passage, took effect in presentí; nothing remaining except for the townships to avail themselves of its provisions, if they chose.
    It is claimed that the law is inhibited by Art. II, Sec 26 of the constitution. It is also claimed to be a delegation of legislative authority, and therefore, unconstitutional.

      First — It will be remembered that by Sec. 1, Art. II, “ The legislative power of the state shall be vested in the general assembly.” What power ? All legislative power which the object and purposes of the state government require; keeping in view, however, other provisions of the constitution, to see how far, and to what extent, legislative discretion is qualified or restricted. Hence the difference between the Constitution -of the United States and our state constitution. In the former, we look to see if a power is expressly given, and in the latter to see if it is limited or denied.
    Every intendment is in favor of the constitutionality of a law; the judgment of the assembly passing it is of value and must not be ignored, and the court must see clearly, before it ■declares an act unconstitutional.
    We regard this as an open question in this state, and will be decided upon principle, aided by authority, so far as it -gives light. And we claim, as we shall hereafter show, that the weight of authority and reason sustain and uphold this law.

      Second — This is a law to take effect upon a contingency, to-wit: that of a vote for or against it — the time of its going into operation being postponed to a later day. If so, there can be no constitutional question urged against it. Cooley on Const. Lira. 121, 122, 123, 389; Bank v. Brown, 26 N. Y. 472; Locks Appeal, 72 Pa. St. 491; Sanford v. County of Mains, 36 N. J. 72; Fell v. State, 42 Md. 71; Bouv. Law Dic. “Local Option”; State v. Cook, 24 Minn. 247; Commonwealth v. Wheeler, 14 Bush. 28; State v. Wilcox, 42 Conn. 364.
    There is a class of cases in Ohio, quite analogous on principle to the one at bar, where the legislature has authorized townships, counties, etc., by vote, to avail themselves of the provisions of certain statutes of this state; authorizing them, upon a majority vote, to subscribe to the capital stock of railroads. C. W. & Z. Ry. v. Commissioners, 1 Ohio St. 77; Cass v. Dillon, 2 Ohio St. 607; Baker v. Cincinnati, 11 Ohio St. 534; Hopple v. Brown T’p, 13 Ohio St. 311; Newton v. Mahoning Co., 26 Ohio St. 610; Paris T’p v. Cooney, 8 Ohio St. 564; State ex rel. v. Perry Co., 5 Ohio St. 487; Ohio ex rel. v. Covington, 29 Ohio St. 102; State v. Board of Education, 38 Ohio St. 3.

      Third — We submit that this is a question of police regulation solely, and in order to properly test this question we must start with first principles. Townships exist under general laws of the state, which apportion the state into political divisions for convenience of government, and require of the people residing within these divisions the performance of certain public duties as a part of the machinery of the state government; and, in order that they may perform these duties, vest them with certain corporate powers. The people of these subdivisions have no choice in the matter. They are corporations with limited powers, given them by statute, and the same may be said of all corporations which have from time to time been created. Cooley on Const. Lim. 240, 241,. 247; Bouvier’s Law Lie. title, “Municipal Corporations;” ■Lillon on Municipal Corporations, 94; Hopple v. Brown Tp. 13 Ohio St. 324, 331; Rev. Stats. Ohio, sec. 1376.

      It may be said, that inasmuch, as it was lawful in this state to traffic in intoxicating liquors, prior to the passage of this act, that when the electors of a township avail themselves of its provision by vote, that it has the effect to suspend the law in force upon that subject, and therefore, that the power of suspending this law was exercised by other power than the general assemby; but this theory is' untenable. The act under consideration was passed in presentí; took effect immediately upon its passage ; and, if not in words, by implication, repealed all prior inconsistent acts, conferring power upon townships to avail themselves of its provisions by vote. It was, and is, a police regulation of the state, of uniform operation; but not of universal operation throughout the state; for it might be adopted by some townships, and not by others, and therefore not of universal operation, but uniform, because all may avail themselves of its provisions. This statute is strictly a police; regulation, which in criminal proceedings is defined in Bouvier thus: “ Malum in se. Evil in itself.” An offense, malum in se, is one which is naturally evil, as murder, theft and the like. Offences at common law are generally malum in se.

    An offense malum prohibitum, on the contrary, is not naturally evil, but becomes so by being forbidden. Now to make this definition apply to this case we will do well to examine Falk ex parte, 42 Ohio St. 644 : Ruffner v. Commissioners, 1 Disney, 200.
    As to the term “ uniform operation.” It is not confined to the taking effect, and being a law throughout the state. . It is sufficient that it may operate uniformly at the discretion of different and distinct bodies throughout the state. The exercise of the power granted under this act, depends upon the discretion of those bodies j and in some townships it may be'exercised and in some it may not. Does the operation of the law consist in the grant of power, or its exercise ? If the latter, it seems clear that such law is not one having a uniform operation throughout the state. It may be a general law because, in general terms and by a general description, it is applicable to all. It confers powers upon distinct bodies of men, but these bodies of men may, and in many cases, of necessity must, exercise the power differently. Ruffner v. Commissioners, 1 Disney, 204, 205; Cooley on Const. Lim., 3 Ed. 389. We, therefore, conclude that, the traffic in intoxicating liquors, prohibited by this act, not being an offense malum in se, but malum prohibitum, is within the definition of “ police regulation,” as given in Exparte Falk, 42 Ohio St. 644, and is not a law of a general nature within the meaning of the constitution ; and being a police regulation, the legislature may prohibit, by general law, and in the same act empower the townships to avail themselves of its provisions; and the act is valid, though some townships may, and others may not, adopt it.

      Fourth — We repeat, that townships have the same right to legislate, and are as much little republics as any other municipalities, within the statutory powers conferred upon them. The American government is one of complete decentralization, and this impels the several states to subdivide their territory into towns, road and school districts, and to confer upon each the power of legislation upon subjects where special authority has been given them. Cooley on Const. Lim. 189, 190; Bronson v. Oberlin, 41 Ohio St. 476 ; Burckholter v. McConnelsville, 20 Ohio St. 309.

      Fifth — This statute is a police regulation of the state, which Blackstone says is “the due regulation and domestic order of the kingdom whereby the inhabitants of a state, like a well governed family, are bound to conform their behavior to the rules of property, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations.” By the general police power of the state, persons and propriety are subjected to all kinds of restraint and burden's to secure the general health and prosperity of the state, and of this there has never been a question made. Cooley on Const. Lim. 572, 573, 581, 595; Id. 152, 153; Railroad v. Sullivan, 32 Ohio St. 152.
    According to the maxim, sie útero tuo ut alienum non laedas, (so use your own as not to injure another's property), which being of universal application, it must, of course, be within the range of legislative action to define the mode and, manner in which every one may so use his own as not to injure others. By this general police power of the state, persons and property are subjected to all kinds of restraint and burdens, in order to secure the general comfort, health and prosperity of the state. Holst v. Roe, 39 Ohio St. 340; Ohio ex rel. v. Covington et al., 29 Ohio St. 102; Railway v. Railway, 30 Ohio St. 604.

      Sixth — The policy of this state is that localities may avail themselves of the statutes at their option. 24 Ohio St. 335; 27 Ohio St. 66.

      David if. Watson, Attorney-General, for the state, in both cases.
    1. The first reason assigned by counsel why the act is unconstitutional is, that, “ It is an act of a general nature and has not a uniform operation throughout the state."
    Grant that the act complained of, and under which the plaintiff in error was convicted, is a law of a general nature, has it not a uniform operation throughout the state ? What is a law of uniform operation? Is not a law which applies alike to every township in the state one of uniform operation, although some of the townships may not avail themselves of its provisions ? Is the uniformity of a statute to be denied or defeated, because some townships do, and others do not, avail themselves of its provisions ? If the opportunity be granted to all the townships in the state alike, does not this operate to make the law uniform in its application, and give it a uniform operation ?
    Look at the provisions of the act. It does not Say that whenever one-fourth of the qualified electors of any number of townships, or any particular township, or townships, but whenever one-fouth of the qualified electors of any township. There is no discrimination in this language. The opportunity to vote upon the question of the sale of intoxicating liquors as a beverage, is given in this act alike to the electors of every township in the state, and it does not follow that because the electors in some townships do, while others do not, vote upon the question, that therefore the act is void for want of uniformity in its operation. The punishment provided for a violation of the act (in case the electors of any township vote to suppress, the sale of intoxicating liquors therein) is also the same in every township, and consequently of uniform operation. This precise point was presented, in Commissioners of Leavenworth Co. v. Miller, 7 Kan. 479.
    Article II, sec. 17, of the constitution of Kansas, provides that, “ All laws of a general nature shall have a uniform operation throughout the state.”
    To the same effect is the case of McAunich v. The M. & M. Ry. Co., 20 Iowa, 338. It involved the consideration of a similar provision of the constitution. Art. I, sec. 6. See also Marmet v. State, 45 Ohio St. 63; State ex rel. Att’y Gen. v. Shearer et al., 46 Ohio St. 275; State ex rel. Att’y Gen. v. Hudson, 44 Ohio St. 137; Groesch v. The State, 42 Ind. 547 ; Heck v. The State, 44 Ohio St. 536.
    2. As to the second proposition of counsel for plaintiff in error, that: “ It is a delegation of legislative power to the people.”
    Does the act, in providing for an election, in any township, which shall determine whether the act. shall be executed amount to a delegation of legislative power to the people, and thereby render the act unconstitutional? I maintain that such provision in the act does not amount to a delegation of such power, and I claim the true rule in such cases to be, that when an act of the general assembly makes its execution contingent upon a vote of the electors to be affected by it, such a provision is not a delegation of such legislative power to the people as to render the act nor that reason unconstitutional. We are not without decisions upon this question by our own supreme court; for that judicial tribunal met the question at the very dawn of our newr constitution, and while it was still uncertain whether the electors of the state wmuld retain the old constitution, or adopt the new one. C., W. & Z. R. R. Co. v. Commissioners of Clinton Co., 1 Ohio St. 77; Cass v. Dillon, 2 Ohio St. 607; Weaver, Trustee, etc. v. Cherry et al., 8 Ohio St. 564.

      Looking beyond the decisions of our own Supreme Court to that of other states, we find the precise question involved here has been frequently determined. Fell v. State, 42 Md. 71; Brig Aurora v. United States, 7 Cranch, 382; Erlinger v. Boneau, 51 Ill. 94; Id. 37; Cain v. Commissioners, 86 N. C. 8; State ex rel. Attorney General v. O’Neill, 24 Wis. 129; Alcorn v. Hamer, 38 Miss. 652; Commonwealth v. Weller, 14 Bush, 218; State ex rel. v. Common Pleas Morris County, 36 N. J. 72; State v. Parker, 26 Vt. 357; State v. Wilcox, 42 Conn. 364; Caldwell et al. v. Barrett et al., 73 Ga. 604; The State v. Noyes, 30 N. H. 276 ; State (Jeremiah Brown, Com.) v. Augustus B. Copeland, 3 R. I. 33; Bull et al. v. Reed et al. 23 Gratton, 78; Slinger v. Henneman, 38 Wis. 504; Gayle, Etc. v. Owen County Court, 83 Ky. 62; Boyd v. Bryant, 35 Kan. 70.
    3. The third cause assigned for the unconstitutionality of this statute is, that “ it authorizes the people to suspend or repeal a law,” to-wit: the “Dow law,” and enact in its stead another. That is to say, under the provisions' of the present law, in those townships where the vote would be “ against the sale,” the dealer must quit the business; and this would amount to a suspension or repeal of the act of May 14, 1886, Ohio laws, vol. 83, p. 157, commonly known as the “Dow law.”
    This cannot be maintained. It would not amount to a suspension of a law, in contravention of the constitution. The statute of 1886 at most, only conferred a conditional right to carry on the business of dealing in intoxicating liquors, and the condition was subject to revocation at any time by municipalities by the terms of the statute. The effect of the act of 1888, being the act in question, simply confers upon the electors of a township that authority which belonged to municipalities.
    A similar question arose in Burckholter v. Village of McConnelsville, 20 Ohio St. 308; Fell v. State, 42 Md. 71; Fox v. Fox, 24 Ohio St. 335.
    No one will question the power of the legislature to repeal laws, nor should it be questioned that the legislature has the power to provide for the repeal or suspension of a law by inserting a provision in a statute, by which the statute is to take effect upon the happening of a contingency depending upon the vote of the people.
    4. The last reason urged against the constitutionality of this law is “ that it seeks to prohibit the liquor traffic when the only power the legislature has, is to regulate it.”
    This raises the question of the power of the general assembly, under the 9th section of the XV Article of the constitution, which is the same as section 18 of the schedule, and is as follows:

      “ No license to traffic in intoxicating liquors shall hereafter be granted in this state; but the general assembly may, by law, provide against evils resulting therefrom.”

      “ But the general assembly may, by law, provide against evils resulting therefrom.” What is meant by this last clause ? What was it intended to mean? Why was it put into the section or the constitution? It does not necessarily imply that prohibition was not contemplated by the first clause of the section ; but it simply indicatesthat the framers of the constitution knew that intoxicating liquors had been, and therefore would probably continue to be, drunk as a beverage, and while they had provided against the state granting a license to that effect, they further desired to clothe the general assembly with constitutional power to legislate against the evils which they supposed and believed would result from the traffic, notwithstanding the prohibition against license. But to what extent has this power been given ? It isnot specifically pointed out how it is to be exercised; nor are there any special limitations upon its exercise. It is a special power given to the general assembly to provide by law againstcertain things, to-wit: the evils resulting from the traffic inintoxicatiug liquors. It is clear that a broad discretion is given to the general assembly by this section. It is the body which is to provide legal means against the evils resulting from the traffic, but the kind of provision it is to make, is not specified or mentioned; nor is there any éxpresoion in the constitution on that subject. The general assembly, is therefore left to its own judgment in the matter, to make such provisions as to it seems best, in providing against such evils. State v. Sinks, 42 Ohio St., 345.
    We have seen that in addition to the general legislative power conferred upon the general assembly, that body has been specially authorized by the constitution to do a special thing, against a special thing, to-wit: to provide, bylaw, against the evils resulting from the liquor traffic. This brings us to the proposition or question, when it authorizes 'the general assembly to “ provide by law against the evils resulting therefrom” (meaning the liquor traffic), it thereby recognizes the continuous existence of such traffic.

    If this is so, the question may well be asked to what extent is it to exist ? If its existence is recognized as a continuing existence, then the only power delegated to the general assembly under the constitution is the power to limit, or restrain, or regulate, the evils, and this seems to be the theory upon which the decision in Miller v. Gibson, 3 Ohio St. 476, is based. But does it necessarily follow that because the general assembly is empowered to provide against the evils resulting from the liquor traffic, that therefore no power exists beyond that of regulating it ? In other words, does this clause mean, that the traffic must exist, notwithstanding the power is conferred upon the general assembly to provide against the evils resulting from it? I do not think so. The general essembly is the judge and the sole judge. If in its opinion the evils resulting from the traffic should be provided against, it has the power to do so. The power conferred by this clause of the constitution is a varying power, limited only by the judgment of the general assembly. If in its judgment a sufficient protection against the evils resulting from the traffic in intoxicating liquors can be obtained by a regulation of the traffic in a certain locality, it has the power so to provide. If upon the other hand, in order to provide against such evils in some other locality, more stringent regulation is required, in the judgment of the general assembly, it also has power to provide it, and so on to the end, that, if in the judgment of the general assembly, in order to provide by law against these evils, it is necessary to prohibit the existence of the cause of the

      evils, why is not the power to do so conferred by the constitution ? If the theory that the legislature can do no more than regulate is to prevail, then I ask how far is this theory to be carried, for, regulation extended is prohibition. Much stricter regulation may be required in one place than in another, and you may carry your power to regulate so far that in the end you have practical prohibition ; for it is not contended that the degree or extent to which regulation can be carried can be controlled. State v. Sinks, supra; State v. Frame, and Benner v. Bauder, 39 Ohio St. 399; Heck v. State, supra.

      We already have prohibition in many portions of the state, under the act of May 14, 1886, commonly known as the Dow law. The 11th section of that act expressly provides: “Any municipal corporation shall have full power to regulate, restrain and prohibit ale, beer, porter houses, etc.; ” and in many of the cities and towns of the state the councils have availed themselves of this provision, and ordinances have been passed to this end, and are now in full force and effect. But this act .also operates upon townships. The first section thereof provides that upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors, there shall be assessed, yearly, etc., the sum of f200, etc. The law is general in its nature and uniform in its operation, and it is a matter of common and current history that the effect of this act was to bring about prohibition in many of the townships of the state. Yet it is simply a mode of regulation. No one will question, however, but the general assembly has the power to fix the tax which that law requires to be paid by a person engaged in the business of trafficking in intoxicating liquors at one thousand dollars .per annum, instead of two hundred, as fixed in the act; and will any one doubt that such a tax would result in the prohibition of the liquor traffic in the townships ? For who could afford to pay such a sum in order to carry on the business in a locality remote from the centers of population ? This would still be regulation, but it would also be prohibition, and the logic of the argument is that you may regulate to such an extent that you effectually prohibit the liquor traffic. The validity of the act of 1886 was sustained in Adler v. Whitbeck, 44 Ohio St., 539. See also, Madden v. Smeltz, 2 Ohio C. C. Rep. 168; 33 Wis., 107; Mugler v. Kansas, 123 U. S. 623 ; Cooley on Const. Lim., 148.
    The tendency of the later decisions is to sustain the constitutionality of such laws. Modern legislation, indicative, perhaps, of the will of the people, from whom all legislative power is originally derived, has taken an advanced position concerning the regulation of the liquor traffic, and in providing against the evils resulting therefrom. Power has been given to municipalities and counties to limit, restrain and prohibit intoxication and the traffic in intoxicating beverages ; yet such legislation has not been any special strain upon the state constitutions ; for such of those instruments as have been subjected to judicial tests, in this regard, have usually been held broad enough to authorize such legislation. In Ohio the general assembly has conferred the power of prohibition upon municipalities, and its constitutionality has been maintained.
    The case was also argued orally by all of the above named ■counsel. In addition, oral arguments were made on behalf of the state, by C. H. Grosvenor and D. L. Sleeper, of Athens county, there being similar eases then pending in the courts of that county.
    The case of Santoro v. The State, was also argued orally, by E. W. Maxson, Prosecuting Attorney of Portage county; on behalf of the state.
   Dickman, J.

In the case of Gordon v. The State, there was a motion to quash the indictment, on the ground, that it did not set forth the name or names of any person or persons to whom the sale of intoxicating liquors was made, and that it was objectionable for duplicity. The indictment alleged, that the accused unlawfully sold intoxicating liquors as a beverage, to divers persons whose names to the jurors were unknown, This we deem sufficient. In those cases in which the names of third persons cannot be ascei’tained, they may be thus designated, in the usual form, as “persons whose names are to the jurors unknown.” Thus, an indictment for harboring thieves unknown, is sufficient from the necessity of the case, upon the fair presumption, that the names cannot be discovered. And in indictments for assault, for felonious homicides, and the like, the person injured or killed may be mentioned as unknown, if such is the fact. 1 Chitt. Cr. Law, 211, 212; 2 Hawk’s PI. of Cr. 231; Commonwealth v. Hitchings, 5 Gray, 482; Blodget v. The State, 3 Ind. 403; People v. Adams, 17 Wend. 475 ; Reed v. The State, 16 Ark. 499; Reg. v. Campbell, 1 Car. & K. 82; Reg. v. Stroud, 2 Moody, 270.

The indictment was not bad for duplicity because it charged,, that on the 22d day of December, 1888, the accused sold intoxicating liquors to divers persons whose names to the jurors-were unknown. For aught that appears upon the record, the offense charged in the indictment may be deemed a single transaction occurring at the time and place set forth, and a conviction may be had upon proof of sale to one person. Upon the subject of duplicity, Waite, J., in Barnes v. The State, 20 Conn. 232, observed, “No matters, however multifarious, will operate to make a declaration or information double, provided, that all taken together, constitute but one connected charge, or one transaction.” A man may, accordingly, be indicted for the battery of two or more persons in the same count; or for a libel upon two or more persons, when the publication is one single act; or for selling liquor to two or more persons without rendering the count bad for duplicity. State v. Anderson, 3 Rich. 172; Rex v. Benfield, 2 Bur. 980, 984; Rex v. Jenour, 7 Mod. 400. In Rex v. Benfield the question was asked, “ Can not the king call a man to account for a breach of the peace, because he broke two heads instead of one? How many in-formations have been for libels upon the king and his ministers ?

But the further objection is raised, that the statute upon which the indictment was founded, is so defective in its provisions, that it cannot be properly executed, and therefore has no validity as a law. The grounds of objection are, that the act does not provide adequate means for determining, whether-the signatures on the petition to the township trustees for an election are genuine, and whether the signers constitute one-fourth of the qualified electors of the township; that there is no provision for the filing and preservation of the petition; and that, as the record of the result of the election is made only prima fiacie evidence that the selling of intoxicating liquors is prohibited and unlawful, it will become an issue of fact in every prosecution under the law," whether the law is in force or not. It may be fairly presumed, that the township trustees will not order a special election, as provided in the statute, until they have satisfactory evidence, that the petition to them has been signed by the requisite number of the qualified voters of the township. Nor is it to be presumed, that the township officers, in whom the people have reposed so much trust and confidence, will neglect to file and preserve the petition presented to them in their official capacity. And although the record of the result of the election is not made conclusive evidence, the statute is not thereby rendered inoperative, An act though not clear and definite — though vague, and indefinite — as to its method of enforcement, may nevertheless be valid. It will not be declared void because it is difficult of execution, or because it fails to accomplish its purposes as fully as the legislature designed. As decided in Cochran v. Loring, 17 Ohio, 409, 427, “Though a law is imperfect in its details, it is not void, unless it is so iiñperfect as to render it impossible to execute it.” The objection, therefore, above stated, does not impair the validity of the statute in question.

It is claimed, however, in the cases at bar, that there are constitutional objections which are fatal to the validity of the act of March 3, 1888. In the first place it is contended, that the act is of a general nature, and has not a uniform operation throughout the state, and is therefore in conflict with sec. 26, Art. II, of the constitution. Conceding for. the purpose of this inquiry, that the act under consideration is a law of a general nature, it satisfies, in our view, the constitutional requirement that it shall be of uniform operation. It is an act, “to further provide against the evils resulting from the traffic in intoxicating liquors, by local option in any township in the state of Ohio.” One-fourth of the qualified electors of any township, may petition the trustees for the privilege of determining, by ballot, 'whether the sale of intoxicating liquors as a beverage shall be prohibited. The election is to be conducted, in all respects the same, in every township, and if the result of the vote is against the sale, the same penalty is attached in every township for carrying on the traffic.' The provisions of the act are bounded only by the limits of the state, and uniformity in its operation is not destroyed, because the electors in one or more townships may not see fit to avail themselves of its provisions. The act makes no discrimination between localities to the exclusion of any township. Every township in the state comes within the purview of tbe law, and may have the advantage of its provisions by complying with its terms. The operation of the statute is the same in all parts of the state, under the same circumstances and conditions.

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

A clause in the constitution of California, like that in the constitution of this state, provides that, all laws of a general nature shall have a uniform operation.” In Smith v. The Judge of the Twelfth Judicial District, 17 Cal. 554, Baldwin, J., referring to this provision says, “ The language must be carefully noted. The expression is, that these laws of a general nature shall be uniform in their operation; that is, that such laws shall bear ecpially in their burdens and benefits upon persons standing in the same category.”

In Brooke v. Hyde, 37 Cal. 375, it was said by Sanderson, J., “ By uniform operation, I understand an operation which is equal in its effect upon all persons or things upon which the law is designed to operate at all.” The meaning of the provision was there held to be, “that every law shall have a uniform operation upon the citizens or pei-sons, or things of any class, upon whom or which it purports to take effect, and that it shall not grant to any citizen, or class of citizens privileges, which, upon the same terms, shall not equally belong to all citizens.”

Section 17, Article II, of the constitution of Kansas also requires that, “ all laws of a gederal nature shall have a uniform operation throughout the state.” In Commissioners of Leavenworth County v. Miller, 7 Kan. 479, it was held, that where the provisions of an act are designed for the whole state, and every part thereof, such act has, in contemplation of section 17, Article II, of the constitution, a uniform operation throughout the state, notwithstanding the condition or circumstances of the state may be such as not to give the act any actual or practical operation in every part thereof. In that case, there came under review an act of the legislature which provided, that the board of county commissioners of any county to, into, through, from, or near which any railroad might be located, might subscribe to the capital stock of any such railroad corporation, in the name and for the benefit of the county, to an amount not exceeding the sum of $300,-000, in any one corporation, and might issue bonds of the county in payment for the stock. But no such bonds should be issued, until the question Avas first submitted to a vote of the qualified electors of the county, at some general or some special election. The Commissioners of Leavenworth County called a special election, to determine by vote of the electors, whether the board of commissioners should subscribe $250,000 to the capital stock of the “Union Pacific Railway Co. Eastern Division,” and issue the bonds of the county in payment for the stock. Miller sued the commissioners upon one of the bonds issued, and it was set up in defense, that the act under which the bonds were issued was unconstitutional, that the bonds were therefore issued without authority and were void. On this point the language of the court was, “ We scarcely think it necessary to say anything with reference to section 17, Article II of the constitution. The act under consideration is so obviously in harmony with this section, that the question attempted to be raised upon its supposed incongruity needs no elucidation from us. All the provisions of said act are expressly enacted for the whole state, and for every part of the state, and it is no more necessary that the same amount of stock be taken in each and every county of the state, in order that the act shall have a uniform operation therein, than that the same number of men shall be executed in each county of the state, in order that the law punishing murder in the first degree shall have uniform operation throughout the state.”

We cannot reach the conclusion that, because the electors of one township may decline to petition the trustees to order a special election to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited, every other township in the state shall be deprived of that privilege, on the ground that the act is not- capable of a uniform operation. Without seeking an authoritative definition of the term “ law of a general nature” in its constitutional sense, we are of the opinion, that the act of March 3, 1888, is not open to the objection that it is not susceptible of the uniform operation contemplated in the constitution.

But it is further contended, that the act is a delegation of legislative power to the people, and therefore in contravention of section 1, Article II, of the constitution. That section provides, that the legislative power of the state shall be vested in a general assembly, which shall consist of a senate, and a house of representatives. It is a general rule, that the agent whose employment and trust are personal, can not, without express or implied authority from his principal, delegate his power. And it is a settled maxim, that when the people, in their sov■ereign capacity, have by the constitution conferred the lawmaking power upon the legislature, that department can not ■delegate such power to any other body. The power must remain where located, and laws must be enacted through the ■established agency, until there is a change in the constitution itself. Yet, while the principle may be universally recognized, that the legislature can not evade its constitutional trustas the law-making agent, difficulty may arise in determining, whether ■by any special act the legislature has, directly or indirectly, sought to divest itself of its constitutional authority and obligation. The natural tendency of the legislative department is to encroachment, and we may well be inclined, in the first instance, to question whether it has relinquished any portion of its power.

In the exercise of the duties devolved upon the legislative ■branch of the state government, it is manifest that discretion ¡and judgment are required, not only in determining the subject-matter of legislation, but not unfrequently in ordering the the conditions or contingencies upon which laws are to be carried into effect. It may be deemed expedient in one case, to provide for preliminary action before a law is executed, which ¡under other circumstances would not be adopted. In requiring .such proceedings prior to the enforcement of a law, the legislature need not be prevented from keeping within the strict line ■of its authority.

It is evident, we think, that the act whose constitutional validity is called in question, was a complete law when it had passed through the several stages of legislative enactment, and •derived none of its validity from a vote of the people. In all its parts it is an expression of the will of the legislature, and its execution is made dependent upon a condition prescribed by the legislative department of the state. By its terms, it was made to take effect from and after its passage. The qualified electors derive their authority to petition the trustees, and the trustees obtain their authority to order a special election, ■directly from the legislature. The right of the electors to register their votes for or against the sale of intoxicating liquors, is conferred by the same body. If a majority of the votes cast at such election should be against the sale, the traffic in intoxicating liquors is thereby prohibited and made unlawful, by virtue of the act of the general assembly, which may at once, if a change should come over the legislative will, repeal the law and avoid the result, of the election. So far from the vote of the electors breathing life into the statute, it is only through the statute that the electors are entitled to vote' at the special election. While they are free to cast their votes, the consequence of their aggregate vote is fixed and declared by the act of the legislature. The penal sanction of the act is subject to no modification by the action of the electors, and it is an elementary principle that, “ the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.” 1 Black. Com. 57. In some of the authorities which we have examined, the idea is prominent, that when the voters are called on to express by their ballots their opinion as to the subject-matter of the law, they declare no consequence, prescribe no penalties, and exercise no legislative functions. The consequences, it is said, are declared in the law, and are exclusively the result of the legislative will.

In Commonwealth v. Weller, 14 Ky. 218, an act to prohibit the sale of intoxicating liquors in the county of Bullitt, provided that, “it shall take effect whenever it shall be ratified by a majority of the voters of said county.” The view taken by the court in construing t'he act was, that the legislature was not attempting to delegate its authority to a new agency ; that when the act passed the legislature, and was signed by the executive, it became a law, and by reason of the law, the people interested in its passage were authorized to vote for or against its provisions; that the making its operation to depend on the popular vote was a part of the law itself, and its going into operation on the contingency that the people' voted for it, was the legislative will on the subject.

In the well known case of C. W. & Z. Railroad Co. v. Com’rs of Clinton County, 1 Ohio St. 77, the county commissioners were authorized by an act of the general assembly, to subscribe to the capital stock of the company, the question of subscription having been first submitted to the qualified electors of the county. “We think' it,” says Ranney, J., in delivering the opinion of the court; “ undeniable, that the-complete exercise of legislative power by the general assembly, does not necessarily require the act to so apply' its provisions to the subject matter, as to compel their employment without the intervening assent of other persons, or to prevent their taking effect, only, upon the performance of conditions expressed in the law. * * * The true distinction,, therefore, is, between the delegation of power to make the law,, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first-cannot be done; to the latter no valid objection can be made.”

The local option act under consideration is, virtually, a law to prohibit the sale of intoxicating liquors upon the contingency, that a majority of the qualified electors of any township shall vote against the sale. Practically, it is-to go into operation upon such contingency. “ Many laws,” says Scott, J., in Peck v. Weddell, 17 Ohio St. 271, “can only operate upon the happening of certain contingencies; yet they are nevertheless valid.” Indeed, the doctrine is generally accepted, that it is within the scope of the legislative power, to enact laws which shall not take effect until the happening of some particular event, or in some contingency thereafter to arise, or upon the performance of some specified condition. May not the execution of a law depend upon the condition, of a popular vote,‘as well as upon any other fair and reasonable contingency? The language of Redfield, C. J., in State v. Parker, 26 Vt. 357, carries with it great force. “After a full examination,” says he, “of the arguments by which it is attempted to be maintained that statutes made dependent upon such contingencies are not valid laws, and a good deal of study and reflection, I must declare, that I am. fully convinced — although at first, without much examination, somewhat inclined to the same opinion — that the opinion is the result of false analogies, and so founded upon a latent fallacy. It seems to me that the distinction attempted between the contingency of a popular vote and other future uncertainties, is without all just foundation in sound policy or sound reasoning, and that it has too often been made more from necessity than choice —rather to escape from an overwhelming analogy, than from any obvious difference in principle in the two classes of cases; for, * * * •one may find any number of cases, in the legislation of congress, where statutes have been made dependent upon the shifting character of the revenue laws, 'or the navigation laws, or commercial rules, edicts, or restrictions of other countries.” The act of congress which came under review before the Supreme •Court 'of the United States, in the case 'of the Brig Aurora v. The United States, 7 Cranch, 382, is a familiar example of our federal legislation.

In the case of Smith v. Janesville, 26 Wis. 291, Dixon, C. J., in discussing this subject, thus observes: It is said that the act is void, or at least so much of it as pertains to the taxation of shares in national banks, because- it was submitted to a vote of the people, or provided that it should take effect only after approval by a majority of the electors voting on the subject at the next general election. This was no more than providing that the act should take effect on the happening of a certain future contingency, that contingency being a popular vote in its favor. No one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be absolute, or conditional and contingent; and if the latter, they may fake effect on the happening of any event which is future and uncertain. Instances of this kind of legislation are not unfrequent. * * * We arc constrained to hold, therefore, that this act is and was in all respects valid from the time it took effect; and consequently that there, was no want of authority for the levy and collection of the taxes in question.”

We are aware, that there are adjudged cases which, it is urged, militate against the views we herein advance. The cases of Rice v. Foster, 4 Harr. 479, and Parker v. The Com monwealth, 6 Pa. St. 507, are mainly relied upon; but, in Railroad Company v. Commissioners of Clinton County, supra, this court drew the distinction, that the voters in those cases were not called upon to determine on the execution of a law under and in conformity to its provisions, but whether the law itself should continue to exist. And in Lock’s Appeal, 72 Pa. St. 491, the case of Parker v. The Commonwealth was held to, have been overruled soon after it was decided ; not in express terms, but by undermining its foundation in holding that laws ■could constitutionally be made dependent on a popular vote for their operation. Agnew, J., said., “This popular vote is but the law’s appointed means of determining a result, which the law enacts, in an alternative form, shall be the contingency ■of its operation. * * * The true distinction, I conceive, is this: the legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine ■some fact or state of things upon which the law makes, or intends to make, its own action depend.”

There have been numerous decisions and much discussion ■concerning the validity of statutes denominated local option laws; and the subject of contingent legislation has given rise to wide debate and many adjudications, but we do not consider it necessary, in this branch of our inquiry, to make further citation of cases or opinions.

It is argued however, that the act of March 3, 1888, seeks to prohibit the liquor traffic, while the legislature has power only to regulate it, and is therefore in conflict with the constitution. The 9th section of Article ~V of the constitution, which is the same as section 18 of the schedule, is as follows: “ No license to traffic in intoxicating liquors, shall hereafter be granted in this state; but the general assembly may by law, provide against the evils resulting therefrom.” Suppose that section were eliminated from the constitution, it would not be easy to establish that, the legislature might not, under the broad grant of legislative power, sanction or prohibit, at its pleasure, the traffic in intoxicating liquors as a beverage. “ The legislative power of this state shall be vested in a general assembly,” is the language of the-constitution; and in the provisions of that section of the schedule, we can find no-implied limitation upon the legislative power, whereby, the general assembly would be forbidden, to legislate for the prohibition of such traffic in intoxicating liquors. Whether under the ordinary constitutional limitations, the absolute prohibition of the liquor trade is a constitutional exercise of legislative authority, is a question that has largely engaged the-attention of judicial tribunals. The question involves a consideration of the police power, and the department of government which can and does exercise that power, is the legislature ; and it is among the limitations upon the legislative power, that we are to seek the limitations upon the police power over the liquor traffic. In the recent case of Mugler v. Kansas, 123 U. S. Rep. 623, it was recognized as a fundamental rule that, it belongs to the legislative branch of the government to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. Justice Harlan in pronouncing the opinion of the court in that case says : If, therefore, a state deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific, and manufacturing purposes, to be necessary to the peace and security of society, the courts can not, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation.” In Tiedeman’s Limitations of Police Power, § 103, this subject has been treated with much research and ability; the numerous cases are there collected; and it is stated by that author as "evident, that the decisions of the courts in different parts of the country, have generally sustained laws for the prohibition of the sale of intoxicating liquors, in any manner, form or bulk whatever, and on the ground that the trade works an injury to society, and may, therefore, be prohibited..

The grant of legislative power in the present constitution, is found, in very nearly the same words, in the constitution ■adopted in 1802. But, in view of the practice under the former constitution, which contained no provisions relative to the subject of intoxicating liquors, and under which many' acts called “ license acts ” were passed by the general assembly, the framers of the present constitution inserted the section of the schedule, which, when adopted and made part of the constitution, would prevent the granting of licenses to traffic in intoxicating liquors, and empower the general assembly to provide against the evils resulting therefrom. The restriction upon the legislative power which forbids the granting of any •such license, can not, we conceive, be construed into a definitive settlement of the extent to which the legislature may go, in the direction of prohibiting the traffic in intoxicating liquors as a beverage.' To say that no license shall be granted, is not to say, by implication, that such traffic may not be prohibited. The refusal to license is obviously not out of the direct line of prohibition. The adoption by the people, as part of the constitution, of a provision which placed under interdiction the license to trade in liquor, was an expression of the popular will that, the state should not thereafter, by its affirmative action, through the general assembly, extend favor or encouragement to the traffic. But, though the authority of the legislature was thereby abridged, to the extent of forbidding the passage of any act to license the traffic, the ample grant of legislative power to the general assembly remained sufficient, when called into exercise, for all the purposes of prohibiting the sale of intoxicating liquors as a beverage. If any doubt, however, was to arise in the future, as to the authority conferred by the grant of legislative power, over that form of the liquor traffic, the removal of that doubt was sufficiently assured by the provision, that the general assembly may by law, provide against the evils resulting from the traffic.

"When the the general assembly was clothed with authority by the constitution, to provide by law against the evils resulting from the'traffic in intoxicating liquors, it was left to its discretion — subject to such express limitations as the constitution imposed — to select the means whereby those evils might be avoided. The. legislature, in the plenitude of its discretion, having determined upon the methods of providing against such, resulting evils, it would not be for the judicial branch of the state government to interfere. If,” says Mcllvaine, J., in The State v. Frame, 39 Ohio St. 399, in the judgment of the general assembly, it be necessary, in order to prevent evils resulting from the traffic, that the sale and use of intoxicating liquors as a beverage, be absolutely prohibited, we can see no constitutional ground upon which such exercise of its judgment and discretion can be reviewed.” And if in view of diminish • ing those evils, a system of regulation is adopted which practically prohibits the sale of intoxicating liquors as a beverage, it is not for this court to say, there has been a misuse of legislative discretion. This court has held, in Adler v. Whitbeck, 44 Ohio St. 539, that the general assembly is vested with the-power, in regulating the traffic in intoxicating liquors, to levy a tax upon the business; but, while the tax is fully authorized, it may, from its magnitude prove so onerous as virtually to amount to a prohibition of such business.

A tax thus burdensome, when levied, might operate as a prohibition of the sale of intoxicating liquors as a beverage, as well in th.e townships, as in the municipal corporations of the state. But, it is contended, that there is no authority to directly prohibit the sale in townships, whatever may be the power of the general assembly in regard to municipal corporations, through the medium of city or village ordinances. In our judgment, when it is conceded, that in providing against the evils resulting from the traffic in intoxicating liquors as a beverage, the legislature may, without infringing the constitution, prohibit the sale, such prohibition may extend to-townships as well as to other divisions of the state. Whatever legislation may be legitimate and necessary for the mitigation or suppression of the evils resulting from the traffic, should reach localities where such evils may exist-, whether-townships or municipal corporations.

After examining the many authorities cited, and giving due weight to the arguments of counsel, we are unable to reach the conclusion, that the statute under review is void for repugnancy to the constitution, on any ground that has beem taken. Certainly, we do not feel that clear and strong conviction of the incompatibility of the constitution and the law with each other, which, as Chief Justice Marshall said, should always exist before the legislature is to be pronounced to' have transcended its powers, and its acts to be considered as, void.

The judgment, therefore, of the court of common pleas in Gordon v. The State, and of the circuit court in Santoro v. The State, should be affirmed.

Judgment accordingly..


text:
    Braden v. Hoffman.

      Vacating judgment.

    1. An order of the court of common pleas, made on motion of the defendant, and vacating a. default judgment entered at a previous term, for irregularity in obtaining the same, is an order affecting a substantial right made upon a summary application after judgment, and may be reversed, vacated, or modified for errors appearing on the record.
    2. Although the court may have decided that there is good ground to vacate on motion such judgment rendered on default at a preceding term, it is error to vacate the same before it has been adjudged that there is a valid defense to the action; and if, on error, such adjudication is not shown by the record, it will not be presumed.
    3. B. at the January term, A. D. 1885, of the court of common pleas, recovered a judgment by default against H. At the next term, H. moved to set aside the judgment for irregularity in obtaining the' samé, which motion was granted, the judgment vacated, and ten days allowed in which to file answer. Held: This was error. Frazier v. Williams, 24 Ohio St. 625, followed and approved.
    (Decided December 10, 1889.)
    Error to the Circuit of Hamilton County.

      Harding & Moore, for plaintiff in error.

      J. T. De Mar and W. G. Hicks, for defendant in error.
   Dickman, J.

The plaintiff in error, Emma Braden, on an appeal from a judgment of a justice of the peace, recovered a judgment in the Court of Common Pleas of Hamilton County, at the January term, A. D. 1885, against the defendant in error, John S. Hoffman, for the sum of two hundred and fifty-,six dollars and seventy-five cents, with interest thereon — the •defendant in the action being in default for an answer or demurrer to the petition. At the May term, A. D. 1885, of the court of common pleas, to-wit: on the 11th day of June, the ■defendant moved the court to set aside the judgment; and thereafter, at the same May term, A. D. 1885, the following ■entry was made upon the journal of the court:

“Now come the said parties with their respective attorneys, .and thereupon this cause came on to be heard upon application ■of defendant for leave to amend his motion filed June 11,1885, to set aside judgment, and for a new trial, by adding thereto the following as the grounds of said motion, viz: “ Irregularity in obtaining said judgment, and mistake, omission or neglect of the clerk,” and it being made to appear to the court that there was irregularity in th.e obtaining of said judgment, it is ordered that said motion be amended accordingly, and thereupon said motion as amended coming on to be heard, the court having fully considered the same, it is ordered by the court that on payment of all the costs in this court, judgment be and is hereby set aside, and ten days are hereby given in which to file answer, to which plaintiff excepts.”

The plaintiff below filed her petition in error in the circuit court, to reverse the order of the court of common pleas vacating the judgment entered at the previous January term. The •circuit court affirmed the order of the court of common pleas, and it is now sought to reverse the judgment of affirmance, and the order of the court of common pleas.

The order of the court of common pleas sustaining the motion, and setting aside the judgment rendered at the preceding term,is tobe deemed a final order, and therefore a proper subject of review on error. It was such “an order affecting a substantial right made upon a summary application in an action after judgment,” as may, by a proceeding in error, be reversed, vacated or modified for error appearing on the record.

Rev. Stats., secs. 6707-6710; Hettrick v. Wilson, 12 Ohio St. 136 ; Tuylor v. Fitch, Ibid. 169. As said by tbe court in Huntington v. Finch, 3 Ohio St. 447, The power of the court to set aside or vacate its judgments, subsequent to the judgment term, is governed by settled principles, to which the action of the court must conform, and for a departure from which, any judgment or order may be subject to be reviewed and reversed, on proceedings in error.”

The main question, however, for consideration is, did the court below err in granting the motion, and in setting aside the judgment rendered at a former term ? Under sec. 5354, sub-division 3, of the Revised Statutes, a court of common pleas, may vacate or modify its own judgment or order, after the term at which the same was made, for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order. As provided by sec. 5357, of the Revised Statutes, the proceedings to correct such mistake, omission or irregularity shall be by motion, upon reasonable notice to-the adverse party, or his attorney in the action. The journal entry shows that the court granted the motion to set aside the judgment on the ground that there was irregularity in the obtaining of it; and though the record is silent in regard to notice to the adverse party, a waiver of notice is shown by the appearance of the plaintiff and her excepting to the order of the court.

Rut by sec. 5360, of the Revised Statutes, a judgment shall not be vacated on motion until it is adjudged that there is a valid -defense to the action in which the judgment was rendered; and when a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment. And by sec. 5359, of the Revised Statutes, the court must first try and decide upon the grounds to vacate or modify a judgment or oi’der, before trying or deciding upon the validity of the defense.

In Frazier v. Williams, 24 Ohio St. 625, it was held that, the object of these provisions of the statute in postponing the judgment to vacate until it shall be adjudged that there is a valid defense to the action, is to preserve the liens and rights of parties under the original judgment, in case a similar judgment should be rendered upon the trial of the cause. It was-construed to be the meaning of the statute, that when the court has decided that there is good ground to vacate, the judgment to vacate should be suspended until after the causéis tried; and if, on such trial, the defense is established, then judgment of vacation is to be entered ; or, if the defense fails,, the judgment is to be affirmed, or such other judgment entered as the result of the trial indicates.

The record in the case at bar does not show that, before setting aside the judgment, there was an adjudication upon the validity of the defense to the action, "and until it was adjudged that there was a valid defense, there was, in' our view, no authority in the statute to vacate the judgment. But it does appear by the record that, after deciding there was good ground to vacate, the court, instead of suspending the judgment to vacate until after an adjudication upon the validity of the defense, vacated the judgment absolutely, in the first instance, and allowed a given time thereafter in which to answer and set up defense. The design of the statute to preserve liens and priorities might thus be virtually defeated,, although, upon the coming in of answer and the trial of the cause, by the court or by a jury, the defense might fail.

The maxim omnia preesumuntur rite acta, can not avail the defendant in error. “The general principle of presuming a regularity of procedure ought not,” says Sir D. Evans, “to be carried too far, and it is not desirable to rest upon a mere presumption that things were properly done, when the natnre of the case will admit of positive evidence of the fact-, provided it really exists.” 2 Evans Poth. 336. Whether it has been-adjudged that there is a valid defense to the action, before-setting aside a judgment rendered at a former term of the court, should not be left to mere presumption. In Hettrick v. Wilson, supra, the court say: “As the record in this case shows no adjudication of the court upon the validity of the plaintiff’s cause of action, it is difficult to see how the order vacating the judgment can be sustained.” The language of the statute is explicit, that until it is adjudged that there is a valid defense to the action in which the judgment was rendered, a judgment shall not be vacated on motion. There must be a previous adjudication that is apparent on the record, which in itself is required to embrace orders, judgments, and all material acts and proceedings of the court. Rev. Stats. § 5334. But the record in the case at bar, far from showing such previous adjudication that there was a valid defense to the action, shows that the defendant was allowed ten days, within which to file answer and make known his defense, after the judgment was set aside.

The judgment of the circuit court, and the order of the court of common plaeas vacating the judgment-rendered at the previous January term, must be reversed.

Judgment accordingly.