author: Spear, J.

text:
    Smith et al. v. Evans et al.

      Resolution of village council accepting library donation — And , agreeing to maintain free public library — At a cost of one thousand dollars per year — Not invalid nor inhibited by statutory provision — That money required be in the treasury.

    1. A resolution of the council of an incorporated village to maintain a free public library, and to provide a suitable site for the same, is authorized by the provisions of the statutes relating to public libraries. Such resolution is not necessarily rendered invalid by the incorporation therein of an acceptance of a proposition tendered by a private person that if the village agree by resolution of council to maintain a free public library at a cost of not less than one thousand dollars a year, and provide a suitable site for the building, he will donate ten thousand dollars to erect such building in the village.
    2. Such resolution is not one involving the expenditure of money within the inhibition of that provision of statute which requires that there shall first be filed a certificate of the clerk that the money required is in the treasury to the credit of the fund.
    (No. 9688
    Decided March 6, 1906.)
    Error to the Circuit Court of Warren county.
    In the petition filed April 26, 1904, in the common pleas of Warren, and the amendments thereto) by William Evans, Malinda Pullen, Albert Stubbs and Maurice Oswald (who in this proceeding are defendants in error), it is averred in substance that Josiah E. Smith and others named (plaintiffs in error here), were duly appointed and acting trustees for the administration, erection and equipment of a free library in the village of Lebanon, Warren county, for the purpose and with all the powers and duties defined by section 1536-934, Eevised Statutes, being section 218 of the municipal code; that certain other defendants named are the qualified and acting members of the council of the village; that on or about April, 1903, Mr. Andrew Carnegie proposed to the village to furnish to said village ten thousand dollars to erect a free public library building, on the terms following: that if the village would agree ,by resolution of council to maintain a free public library, at a cost of not less than one thousand dollars a year, and would provide a suitable site for the building, he would furnish ten thousand dollars ,to erect such building; that on the seventeenth of July, 1903, the council passed a resolution to accept the donation on the terms proposed, and thereby agreed on behalf of the village to maintain such free public library at a cost of not less than one thousand dollars a year, and directed that a copy of such resolution be transmitted to said Carnegie; that said village, and said council, and said library trustees are now threatening to receive said sum, on the conditions named, and pledge the faith of the village to perpetually maintain a library at a cost of not less than one thousand dollars per year, contrary to the best interests of the village, and unless enjoined will accept said sum and pledge the good faith of the village and obligate the village perpetually and forever to maintain a library at the cost aforesaid, and that the council has levied a tax on all the property 'in the village for the purpose of raising revenue therefor; that at the time the council entered into said agreement the money required for said agreement was not in the treasury of said village to the credit of the fund from which it was and is to be drawn, nor had the clerk of the village certified to the council that the money required was or is in said treasury to the credit of the fund from which, it was to he drawn, and not appropriated for any other purpose. Said agreement of council is in violation of the revised statutes of the state, section 1536-205. Plaintiffs are owners of real and personal property in the village, and taxpayers. There is no solicitor, attorney or counselor of the village, and plaintiffs bring the action on behalf of the village, and for all taxpayers. Injunction was prayed,, and for full relief.
    The defendants, the members of the board of trustees, on May 7, 1904, filed an answer as follows:
    “The said defendants, John E. Smith, Josiah Morrow, George W. Sausser, Horace B. Stokes, Calvin B. Decker and W. Chester Maple, members, of the library board of trustees, as such trustees, for their answer in this cause, say that the terms of the proposal of Andrew Carnegie to the village of Lebanon are not correctly stated in the petition of the plaintiffs; that said proposal was in the following terms:
    ‘New York, 20th February, 1903.
    ‘W. Chester Maple, Esq., Lebanon, Ohio.

      ‘Dear Sir — Responding to your communication in behalf of Lebanon: If the city agree by resolution of council to maintain a free public library at a cost of not less than one thousand dollars a year, and provide a suitable site for the building, Mr. Carnegie will be pleased to furnish ten thousand dollars to erect a free public library building for Lebanon.
    ‘Respectfully yours,
    ‘Jas. Bertram, Private Secretary.*

      ‘“The defendants say that on July 17, 1903, the «council accepted said donation by the adoption of the following resolution:

      ‘Resolved, By the council of- the village of Lebanon, State of Ohio, that the offer of Mr. Andrew Carnegie, made February 20, 1903, to furnish "ten thousand dollars, to erect a free public library building for Lebanon is hereby accepted, and

      ‘Resolved, further .that the council agrees for and on behalf of said village to maintain said free public library at a cost of not less than one thousand -dollars a year and to provide a suitable site for the .same.

      ‘Be it further Resolved, that we express to said Andrew Carnegie the sincere gratitude of the village for this beneficent gift, and that the clerk is directed to transmit to said donor a copy of these resolutions with a request for directions to this council for further mode of procedure.’
    “The foregoing offer and proposal of said Andrew Carnegie is the only offer and proposal which has been made by him to said village concerning said library building, and the foregoing resolution of acceptance by said council is the only action which has been taken by said council concerning the acceptance of said offer and proposal.
    “These defendants propose to accept and receive said donation of ten thousand dollars from Andrew Carnegie for the purpose of constructing a library building in accordance with the terms of his said proposal and the acceptance thereof by said council and not otherwise, and they deny that the acceptance of said proposal by said council or the receiving of said money by these defendants is contrary to the best interests of said village or the laws of the state of Ohio.
    “These defendants further say that all of the plaintiffs in this cause áre owners of lots adjoining the public square, of said town on a part of which the proposed free public library building is to be erected and that the purpose of the plaintiffs in bringing this action is to delay and hinder a public improvement called for by a large majority of the citizens of Lebanon, and to prevent the public from reclaiming the vacant parts of said public square from the private use of the plaintiffs, to the use of the public for which it was dedicated.
    ““Wherefore, these defendants pray that said petition may be dismissed and that they may go hence without day and that they may recover their costs herein expended. ’ ’
    To this answer a general demurrer was filed by the plaintiffs which was sustained by the common pleas and final judgment entered for plaintiffs. This judgment was affirmed by the circuit court, and the library trustees, defendants below, bring error.

      Mr. John E,. Smith; Mr. Josiah Morrow and Messrs. Eltsroth £ Maple, for plaintiffs in error,
    cited and commented upon the following authorities:

      Cincinnati v. Holmes, 56 Ohio St., 112; Braman et al. v. Elyria, 26 O. C. C., 731; 5 C. C. R., N. S., 387; Lower River Road Co. v. Cincinnati, 71 Ohio St., 486; secs. 1536-100, par. 22, 1536-934, Rev. Stat.

      Messrs. Runyan £ Stanley, for defendants in error,
    cited and commented upon the following authorities:

      Armstrong v. Herancourt Brewing Co., 53 Ohio St., 467; Pullen v. Smith et al., 26 O. C. C., 551; Rhoades v. Toledo, 3 Circ. Deo., 325; 6 C. C. R., 9; Ryan v. Hoffman, 26 Ohio St., 123; Tyler v. Columbus, 3 Circ. Dec., 427 ; 6 C. C. R., 224; secs. 1536-205, 2644, 2702 and 3492, Rev. Stat.

      Mr. F. M. Hamilton, Jr., for village of Lebanon, filed no brief.
   Spear, J.

The principal question involved in this case is with respect to the application to the action of the council of section 2702, Revised Statutes, now incorporated as section 1536-205, the pertinent provision of which, is: “No contract, agreement or ■•other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the expenditure of money, be passed by the council * * * of a municipal* corporation, unless the auditor * * * and if there is no auditor, the clerk thereof, shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose; * * * and all contracts, agreements or other obligations, and all ordinances, resolutions and orders entered into or passed contrary to the provisions of this section shall be void.” It is the contention of plaintiffs in error that the resolution of the council is not within the scope or purpose of the above quoted section because the resolution contemplated not an immediate expenditure of the funds of the corporation bnt an annual appropriation which would enter into the annual budget of taxes, and become a part of the running expense of the municipality belonging to the library fund, while the opposite contention is that the attempt of council, by its resolution, to make an agreement with Mr. Carnegie binding upon its successors forever is wholly beyond its power, and that the clerk of the village had not certified that the money required to maintain a free public library at the cost of not less than a thousand dollars a year was in the village treasury to the credit of the proper fund, and that in fact.no such sum was in the treasury, which latter proposition was maintained by the circuit court, and that court held that the resolution involved the expenditure of public money within the inhibition of the section of the statute above quoted, and was therefore invalid.

It seems to us that the first proposition of counsel for defendants in error presents a purely academic question, and one which it is not at all necessary to decide or discuss here. Whether or not the present council could, as to the matter of tax-levy and appropriation of money for maintaining a free library, bind their successors for all time, might arise, should circumstances cause litigation involving that question, but so long as the proposed donor of the money for the library building is satisfied with the passage of the resolution indicated by his offer, it cannot be the duty of the courts to try to discourage , the gift by anticipating a question not necessarily involved in the pending controversy.

Is the resolution of council forbidden by the statute? Is it, within the meaning of the clause quoted, a contract or obligation “involving the expenditure of money?” Although a casual reading of the clause, and giving to it a literal construction, might lead to the conclusion that the. section has application to the present case, yet, upon reflection, we are constrained to think that the contract or obligation, whatever it may be, is not one involving the expenditure of money within the meaning of this clause. The section has been under review a number of times in this court and its general scope and purpose considered and defined. In Elster v. Springfield, 49 Ohio St., 82, it is held that section 2702 “is intended for the protection of taxpayers by checking municipal extravagance and the incurring of indebtedness.” It is said by Minshall, J., in Cincinnati v. Holmes, 56 Ohio St., 104, that the plain purpose of this law is “to prevent the incurring of an indebtedness by a municipal corporation beyond the ordinary resources of its revenue and whereby an annual excess of indebtedness will be created over these revenues. But it has not the vigor of a constitutional provision, and cannot therefore apply to a statute that not only authorizes the making of a particular kind of improvement, but also provides the mode and manner in which the funds are to be raised to defray the .costs and expense of it. Under this statute the burden of the taxpayer will neither be increased nor diminished by the time when the contract is let for the work of the improvement. The making of the contract has reference, for its performance on the part of the village, to a fund to be raised by taxation and assessment, authorized by the act for the particular purpose, and which can be applied to no other. * * * Where a contract is made to be discharged from a general fund that may be applied to a variety of purposes, more obligations may be incurred by way of anticipation than can be discharged from it, thus causing an annual deficit, to meet which increased taxation must be resorted to. * * * Here, however, the fund to be raised is appropriated by the statute to a particular improvement; and all taxation and assessment authorized must be limited to the costs and expenses of the improvement. All the limitations in this regard are in the statute.” In Comstock v. Nelsonville, 61 Ohio St., 288, Burket, J., speaking of this section of the statute, says that “the object of the general assembly evidently was to compel municipalities to have the money in the treasury before appropriating or spending it. This can only apply to money raised, or to be raised, by a levy on the general tax list of the municipality. If the money is to be provided, in the first instance, by taxation, it must be collected and in the treasury before it can be appropriated or expended either by ordinance, resolution, order, contract, agreement or other obligation.”

No one doubts that ample provision is made by statute for the establishment and maintenance of a free public library by a municipal corporation. Section 1536-100, clause 22, gives power to establish, maintain and regulate, and to acquire property by purchase, gift, devise, or appropriation for the purpose; section 1536-103 gives specific authority to any municipal corporation to appropriate land for a library site; sections 1536-102 and 1536-192, give power to levy and collect taxes for any municipal purpose. Section 1536-934 gives specific authority to levy a tax, not exceeding one mill on the dollar of the taxable property of the municipality, in aid of a free public library, and (by section 4002-39) the money thus raised to constitute a library fund and to be kept separate and apart from other money of the corporation. So that the legislative intent and policy respecting the subject of free public libraries is .clear, and the right of council in furtherance of this purpose to accept voluntary aid in its accomplishment is not open to question. It being manifestly within the power of council in this case to provide by taxation for the construction of a library building and for the maintenance of a library therein, it cannot be against the policy of the law, as it certainly is not against its letter, for council, by resolution, to accept the tender of a gift of money for the construction of the building, thus relieving the taxpayers of that burden and furthering to that extent the general purpose. Unless, therefore, such acceptance offends against the clear provisions of the section in question, construed in the light of what has preceded, it ought not to be held invalid. We think it does not so offend. It is not made to appear that the result contemplates municipal extravagance, nor the incurring of indebtedness beyond the ordinary resources of the village revenues, for provision to meet the expense of equipment and maintenance has been made by a sufficient levy authorized by law, not in excess of one mill on the dollar, and which cannot be applied to any other purpose; nor does this resolution appropriate or expend the moneys of the municipality. It is but a preliminary step necessarily preceding any order for the payment of money. It is to be followed by •an ordinance establishing the library; that by the appointment by the mayor of trustees, then the levy which has been made, and finally the appropriation of the money so raised for the purpose expressed; and the contracts by the board for the equipment of the library and the administration of its affairs. If, when these last steps are proposed to be taken, the money has not been properly certified as being in the treasury to meet the expense contemplated, there will be abundant opportunity to interpose the check of the statute; until then the effort is, we think, premature.

Recurring again to section 1536-100, it is significant to note that clause 22, before cited, gives power to provide for the rent and compensation for the use of any existing free public library, and the following clause gives like power with respect to an existing free public hospital. It would be impossible to execute this power unless there had been some preceding resolution or agreement. The same may be said with respect to section 1536-934, which gives authority to levy a tax not exceeding one mill on the dollar and pay the same to a private corporation or association maintaining a free public library for the benefit of the inhabitants of the municipality for compensation and for use and maintenance of the library, which section equally contemplates some previous agreement between the municipal corporation and the library authorities. These sections cannot be reconciled with section 2702 construed as claimed by counsel for defendants in error, but give color to the opposite construction.

Ryan v. Hoffman, Auditor, 26 Ohio St., 109, is cited as supporting the claim of defendants in error. One of the contentions in that case was with respect to the validity of an ordinance which related to the expenditure of money by appropriating it. We have no such case. Nor does the case of Elyria Gas Company v. Elyria, 57 Ohio St., 374, rule the case at bar. The issue there was respecting the action of council in the adoption of an ordinance providing for the sale of bonds of the city to establish waterworks which it was alleged was an unlawful exercise and an abuse of corporate power. The court sustained this claim and held that, inasmuch as the expenditure of the fund when raised would be a misapplication of public money, and that the rights of purchasers would be involved by the sale of the bonds, a suit might be maintained to enjoin without waiting until the bonds should be sold and the fund thus raised. The precise question we have has not been heretofore made in any reported case) in this court, nor so far as we are advised in any of the courts of the state, but a case involving a question nearly related to it was presented in Braman v. Elyria, 5 O. C. C. R., N. S., 387 (affirmed by this court, 73 Ohio St., 346), opinion by Winch, J., where the application of section 2702 to a proceeding by a municipal corporation for a street improvement is considered and ably discussed, the holding being that the certificate of the clerk referred to in the statute is not required until just before the contract letting the work is signed by the municipal authorities.

Objection is made that this error proceeding cannot be maintained by the library trustees because the judgments below are not prejudicial to them, but if any one is injured by the judgments below it is the village, and a considerable portion of the brief of the defendants in error, who were plaintiffs below, is devoted to an ingenious argument in support of the proposition. We think the point is not well taken. It was believed by these parties when they commenced and conducted their action in the common pleas that the trustees were necessary parties, and they procured an injunction forbidding a performance by them of a public duty which but for that injunction they would have proceeded to perform. The objection comes late, and we think lacks substance. It is not claimed that all the proper parties are not before the court. The village was a party in the courts below and is a party here. It does not contest the claim of plaintiffs in error, and its rights can be as justly settled in this proceeding as in any other.

We are of opinion that the answer of the trustees makes a good defense to the petition, and that the demurrer should have been overruled. We are farther of opinion that, upon the whole case presented by the record, the plaintiffs below were not entitled to any relief. The judgments below will be reversed, the injunction dissolved, and the petition below dismissed.

Reversed.

Shattck, O. J., Price, Crew, Summers and Davis, JJ., concur. \


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    The Mansfield Mutual Insurance Company et al. v. The Cleveland, Cincinnati, Chicago & St. Louis Railroad Company.

      Lease of railroad company — That the lessee exonerate it from-all liability — For damage to property by fire — Not void as. against public policy, when.

    1. A stipulation in a lease made by a railroad company that the lessee is to exonerate it from all liability for damages by fire to any property or structure on the demised premises,, ■which in the operation of the railroad may be accidentally or negligently communicated to it, is not void as against public policy.
    2. Such lessee and his insurers cannot recover from the railroad company the amount of the loss by fire to a building, and its contents owned by the lessee and located partly on such premises, when in the operation of the railroad the-fire was communicated to that part of the building on the; demised premises.
    (No. 9449
    Decided March 6, 1906.)
    Error to the Circuit Court of Richland county..
    A building, belonging to the Shelby Stove Company and located partly on the right of way of the defendant, was partially destroyed by fire. It was insured for five thousand dollars, one thousand dollars in each of the five insurance companies,, plaintiffs in error. The insurance companies paid part of the loss and each in the amount paid was subrogated to the right of the insured, and they and the insured jointly sued the defendant to recover the-whole amount of the loss.
    The building was an entirety and it is averred that the fire was caused by sparks from a locomotive and started in that part of the building on the right of way.

      The defendant answered that the building was on land that was part of its right of way and that the stove Company was in possession under a lease that contained the following stipulation; “With full knowledge of the difficulty of preventing the emission of sparks and fire from engines and trains it is expressly stipulated, agreed and understood that as a part of the consideration for the execution of this agreement the licensee is to assume all risks of fires and the danger thereof to any property or structure on the demised premises and to save harmless the licensor from all liability for damage by fire to any such property or structure which in the operation of licensor’s road may accidentally or negligently be communicated to any such property or structure, anything in any law of the state of Ohio to the contrary notwithstanding.”
    The plaintiffs replied that only about twelve feet in width of the building was on the leased land and averred that three-fourths of the loss was in that part of the building not on defendant’s land.
    A jury was waived and the case tried to the judge, who found for the defendant, and on error the judgment was affirmed by the circuit court.

      Messrs. Laser, Huston & Marquis, for plaintiffs in error.

      Messrs. Cummings, McBride é Wolfe, for defendant in error,
    cited and commented upon the following authorities:

      Hartford Fire Ins. Co. v. Railway Co., 63 Fed., 904; 70 Fed., 201; 44 U. S. (Law. ed.), 84; Griswold v. Railway Co., 90 Ia., 265; 24 L. R. A., 647; Stephens
      v. Railroad Co., 109 Cal., 86; 29 L. R. A., 751; Greenwich Ins. Co. v. Railroad Co., 56 L. R. A., 477; Trust & Railway Co. v. Commercial Ins. Co., 35 U. S. (Law. ed), 154.
   Summers, J.

'It is well settled in this state that a common carrier may not by contract exempt itself from its common law liability for its own negligence; but this rule applies only to its duties as a common carrier, and a stipulation in a lease, like that in the present case, exempting it from liability for loss by fire occasioned by its negligence, is not against public policy. This has been held in the following very carefully considered cases: Griswold v. Illinois Central Ry. Co., 90 Ia., 265; Stephens v. Southern Pacific R. R. Co., 109 Cal., 86; Greenwich Insurance Co. v. L. & N. R. R. Co., 112 Ky., 598; Hartford Fire Ins. Co. v. Chicago, M. & St. P. Ry. Co., 175 U. S., 91; Richmond v. New York, N. H. & H. R. R. Co., 58 A., 767.

Section 3365-5, Revised Statutes, is as follows: ‘ Every railroad company operating a railroad or any portion of a railroad wholly or partially within the state of Ohio, shall be liable for all loss or damage by fire originating upon the land belonging to such railroad company caused by operating such railroad. Such railroad company shall be further liable for all loss or damage by fires originating on lands adjacent to such railroad company’s land caused in whole or in part by sparks from an engine passing over the line of such railroad, to be recovered before any court of competent jurisdiction within the county in which the lands on which such loss or damage occur are situated, and the existence of such fires upon such railroad company’s lands shall be prima facie evidence that such fire was caused by operating such railroad. ’ ’

Section 3365-6 is as follows: “That in all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, whether real or personal, occasioned by fire communicated by any locomotive engine, while upon or passing along any railroad in this state, the fact that such fire was so communicated, shall be taken as prima facie evidence to charge with negligence the corporation, or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad, either as owners, lessees, or mortgagees, and also those who shall at such time have the care and management of such engine; and it shall not, in any case, be considered as negligence on the part of the owner or occupant of the property injured, that he has used the same in the manner, or permitted the same to be used or remained, had no railroad passed through or near the property so injured, except in cases of injury to personal property, which shall be at the time upon the property occupied by such railroad.”

These sections are sections one and two of an act entitled, “An act to make a railroad company liable for loss or damage by fires in certain cases and prescribing rules of evidence in certain cases,” passed April 26, 1894 (91 O. L., 187). This act has not been before us for interpretation, but similar legislation has existed in a number of states for many years. The occasion for it, and the history of it, is very fully set forth in the learned opinion of Mr. Justice Gray in St. Louis & San Francisco Ry. Co. v. Mathews, 165 U. S., 1. At common law a man was liable for an injury caused by a fire started upon his own premises by himself or his servants or guests, unless.its spreading to a neighbor’s property was caused by a violent tempest or other inevitable accident which he could not have foreseen. In the earlier cases in England it was accordingly held that a railway company was liable for property destroyed by fire kindled by sparks from its engines independently of negligence. But later it was settled in Vaughan v. Taff Vale Ry. Co., 5 Hurl. & Nor., 679, that the use of the engine having been authorized by an act of parliament, the railroad company was not liable for such loss, unless it was occasioned by its negligence. In this country, in the absence of a statute, the decisions generally are to the same effect. But as early as 1837, Massachusetts provided by statute that a railroad company should be liable for such losses, “unless the said corporation shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injury. ’ ’ In the course of his opinion, Mr. Justice Gray says: “In Connecticut, before any legislation towards holding railroad corporations liable for property burned by sparks from their locomotive engines, they were held not to be so liable, if their use of such engines was with due care and skill, and in conformity with their charters. Burroughs v. Housatonic R. R. Co., 15 Conn., 124 (38 Am. Dec., 64). The subsequent legislation upon the subject and the reasons for it as stated by the supreme court of the state were as follows: experience demonstrated that in all cases of fire set by the operation of railroads it was extremely difficult, and in some cases impossible, to prove negligence even when it existed. This led to the passage in 1840, and to the re-enactment in 1875, of a statute providing that, in all actions for an injury occasioned by fire communicated by any railway locomotive engine in the state, proof that such fire was so communicated should be prima facie evidence of negligence. Connecticut Stat. 1840, chap. 26; Conn. Gen. Stat. 1875, title 19, chap. 11, sec. 29. Even then, the difficulty was but partially removed, for in most cases the defendant could easily produce evidence of due care, and the plaintiff would be ill-prepared to meet it. Therefore, in 1881, the legislature took the broad, equitable ground that upon proof of the fact that the locomotive engine communicated fire to and destroyed property the company should be liable, independently of the question of negligence; and accordingly enacted another statute, in the words of the Massachusetts statute of 1840, before mentioned, imposing an absolute liability, qualified only by the insertion of the words, ‘without contributory neg-ligence on the part of the person or corporation entitled to the care and possession of the property injured.’ ”

We are not called upon in the present case to. interpret these sections of the statute, and what has been set out respecting the probable purpose of such legislation has been done in order that it may be seen that a stipulation such as was contained in the lease under consideration does not contravene the public policy of the state as evinced by this legislation. It was not necessary that the stove company in this matter should deal with the railroad company by locating its building upon the railroad company’s property. The transaction on its part with the railroad company was a matter of choice. The railroad company, had it owned the building, might have protected itself from loss by insurance, and no good reason is apparent why it might not exonerate itself from liability when it licensed the stove company to erect a building on the premises. In Griswold v. Illinois Central Ry. Co., supra, it is expressly held that a similar stipulation does not contravene the statutes of Iowa making a common carrier liable for loss by fire.

It is clear, also, that the insurance company, by the articles of subrogation, could not take greater rights than those of the assured, (St. Louis, I. M. & S. Ry. Co. v. The Commercial I. & S. Co., 139 U. S., 223), so that the only question remaining is the interpretation of this stipulation of the lease.

The contention of counsel for plaintiffs is that inasmuch as the exemption is not of the entire building but only of any property or structure on the •demised premises it should be interpreted to exempt only so much of the building and contents as is on the right of way, and they put this case — Suppose there had been two buildings, one on the right of way and the other on the stove company’s land, so -close that the destruction of the one on the right of way lay fire would almost inevitably involve the other, would the court then say that that stipulation in the lease exonerated the defendant from liability for the loss by fire of the building on the stove company’s land; resulting from the burning, occasioned by the defendant’s negligence, of the building on its right of way? They say, certainly not, and their conclusion may be correct. We find it sustained by Railroad Co. v. Blaker, 68 Kan., 244.

It might be sufficient answer to say that the supposed case is not this case and that, under the circumstances stated, it is probable the exemption would have been from any loss by fire of the structure and property on the right of way and by fire communicated from such fire.

The interpretation contended for is too narrow and is unreasonable. The lease undoubtedly is on. a form prepared for cases in which it was contemplated the insured structure would be entirely on the leased premises. The building was an entirety. The setting fire to that part of it on the right of way was the proximate cause of the entire loss. When that part of it was set on fire the probable consequence was that the entire structure would be a loss and to admit that the parties contemplated that the lessee might make the lessor liable for a big loss by erecting a building on the adjacent lands with a corner of it on the right of way, when the lessor stipulated for an exemption, would be to convict the defendant of the wisdom of an ostrich which imagines its whole body is hid when it sticks its head in the sand.

Judgment affirmed.

Shatjck’, C. J., Price, Crew, Spear and Davis, JJ.p concur.


author: Chew, J.

text:
    The State of Ohio v. Lawrence.

      Amendment or repeal of statutes not to affect pending suits— Section 79, Revised Statutes — Rape—Section 6816, Revised 'Statutes — Admission 6y the accused of acts more than two years after alleged offense — Not competent evidence, when —Law of consent — Criminal law.

    1. By force of the provisions of section 79, Revised Statutes, the repeal or amendment of a criminal statute in no manner affects pending prosecutions, or causes of prosecution existing at the time of such amendment or repeal, unless it be otherwise expressly provided in the amending or repealing act. (The first clause of the syllabus of In re Kline, 70 Ohio St., 25, qualified.)
    2. On the trial of one indicted under section 6816, Revised Statutes, for carnally knowing and abusing a female person under sixteen years of age with her consent, confessions or admissions of the accused of acts of sexual intercourse with the prosecutrix more than two years after the time of the alleged commission of the offense for which he is being tried, and after prosecutrix had attained the age of sixteen years, are not competent to he given in evidence against him as tending to prove the crime charged in the indictment.
    (No. 9390
    Decided March 6, 1906.)
    Error to the Circuit Court of Holmes county.
    At the September term, 1903, of the court of common pleas of Holmes county, to-wit: September 29, 1903, an indictment was returned by the grand jury of that county against the defendant in error, Howard F. Lawrence, charging him with the crime of rape. Said indictment alleged and charged “that on the twenty-sixth day of April, 1901, at said county of Holmes said Howard F. Lawrence being then and there a male person of the age of eighteen years and upward, did unlawfully and knowingly carnally know and abuse one Cambia B. Kasner, with her consent, she, the said Cambia B. Kasner then and there being a female person under the age of sixteen years, to-wit: of the age of fourteen years, contrary to the form of the statute in such case made and provided, ’ ’ etc. On October 17, 1903, a motion was filed by the defendant to quash said indictment, which motion was by the court overruled. Thereafter, on December 1, 1903, the defendant further excepted to said indictment by filing thereto a plea in abatement. To this plea the prosecuting attorney, on behalf of the state, interposed a general demurrer which was sustained. Defendant Howard F. Lawrence, thereupon made application for leave to amend his said plea in abatement, which request was refused by'the court, and leave to amend was denied. The defendant then challenged the sufficiency of said indictment by demurring thereto; this demurrer was also overruled, and thereupon the defendant being duly arraigned upon said indictment pleaded thereto, “not guilty.” Thereafter continuances were had in said cause from time to time, until the May term, 1904, of said court of common pleas, at which term, to-wit: on June 17, 1904, the defendant was tried and convicted of the crime of rape, in manner and form as he stood charged in and by said indictment. A motion for new trial was made and overruled, and defendant was sentenced to imprisonment in the Ohio penitentiary for a term of ten years. Thereupon error was prosecuted by the defendant Howard F. Lawrence in the circuit court of Holmes county. On the hearing of the petition in error in the circuit court, that court reversed the judgment of the court of common pleas, and discharged said defendant. The state now prosecutes error in this court, under favor of-section 7306a, Revised Statutes, and asks a reversal of the judgment of the circuit court and of the order made by that court discharging the defendant from custody.

      Mr. C. J. Fisher, prosecuting attorney, and Mr. W. Stilwell, for plaintiff in error,
    cited and commented upon the following authorities :
    Sutherland on Statutory Construction, sec. 167, 238; Chinn v. State, 47 Ohio St., 575; In re Kline, 70 Ohio St., 25; United States v. Tynen, 11 Wall., 86; Commonwealth v. Kimball, 21 Pick., 373; Rooney v. State of North Dakota, 37 Chic. Leg. N., 25, Feb. 4, 1905; Calder v. Bull, 3 Dall., 386; Story’s Const., sec. 1345; Cooley’s Constitutional Limitations, sec. 267; Commonwealth v. Gardner, 11 Gray, 443; 1 Bishop’s Criminal Law, sec. 280; State v. Rooney, 12 C. D., 144; State v. Thomas, 61 Ohio St., 461; State v. Barlow, 70 Ohio St., 363; Jones v. State, 54 Ohio St., 1; 1 Bishop’s New Criminal Law, sec. 279; Palmer v. State, 42 Ohio St., 596; Knoup v. Piqua Bank, 1 Ohio St., 603; Railroad v. Commissioners, 35 Ohio St., 1; Arrowsmith v. Hamering, 39 Ohio St., 576; Railroad Co. v. Belt, 35 Ohio St., 481; Salisbury v. Howe, 87 N. Y., 128; People v. Railroad Co., 156 N. Y., 570; Calkins v. State, 14 Ohio St., 222; S. & S. Statutes, 1; Ham v. Kunzi, 56 Ohio St., 531; Yocum, Admr. v. Allen, 58 Ohio St., 280; Cochran v. Taylor, 13 U. S., 382; Lakeman v. Moore, 32 N. H., 410; United States v. Barr, 4 Saw., 254; State v. Wish, 15 Neb., 448; Fullerton v. Spring, 3 Wis., 671; Wright v. Oakley, 5 Metc., 406; State v. McColl, 9 Neb., 203; State v. Smith, 62 Minn., 540; secs. 79, 6816, 6818 and 7388-11, Rev. Stat.

      Messrs. Nicholas é Merrell, for defendant in error,
    cited and commented upon the following authorities:
    Sutherland on Statutory Construction, secs. 134, 143, 162, 166 and 167; Knoup v. Bank, 1 Ohio St., 603; Kane v. Railway Co., 49 Conn., 139; Mongeon v. People, 55 N. Y., 613; United States v. Tynen, 78 U. S., 88; Chinn v. State, 47 Ohio St., 575; In re Kline, 70 Ohio St., 25; Knox v. Baldwin, 80 N. Y., 610.
   Chew, J.

The defendant in error, Howard F„ Lawrence, in his petition in error in the circuit court, assigned as grounds of error, in the record and proceedings of the court of common pleas, the following:

1. The court erred in overruling the motion of the plaintiff in error to quash the indictment in this action.
2. The court .erred in sustaining the demurrer to the plea in abatement of the plaintiff in error.
3. The court erred in striking from the files the application to amend the plea in abatement and in refusing to permit the same.
4. The court erred in overruling the demurrer of plaintiff in error to the indictment.
5. The court erred in overruling the motion of plaintiff in error for a change of venue.
6. The court erred in admitting testimony offered on the trial by the State and to which plaintiff in error at the time objected.
7. The court erred in rejecting evidence offered by the plaintiff in error on the trial of the cause and to which the plaintiff in error excepted.
8. The court erred in its charge to the jury.
9. The court erred in refusing to give the special charges requested by the plaintiff in error.
10. The verdict is contrary to the manifest weight of the evidence and the law.
11. There is no evidence to support the verdict.
■ 12. The verdict was given for the state when it should have been given in favor of the plaintiff in error.
13. The law which made the offense charged a crime at the time of its alleged commission, has since been repealed and is no longer in force.
14. The court erred in overruling the motion of plaintiff in error for a new trial.
15. The court erred in sentencing the defendant and the sentence is excessive.
16. Other errors apparent upon examination of the record.

These several assignments of error were all considered and sustained by the circuit court, except the first, second, fifth and seventh assignments, which were held by the court to be not well taken, and were overruled. Of the several errors thus found by the circuit court in the record and proceedings of the trial court, two only, we think, need be especially noticed or considered by us in this opinion, namely: the sixth and thirteenth assignments. The thirteenth assignment of error, was as above shown, that the law which made the offense charged a crime, at the time of its alleged commission, had prior to the time of the indictment and trial of said Howard F. Lawrence, in the court of common pleas, been repealed. Under this assignment it was claimed by counsel for Howard F. Lawrence, in the circuit court, and it is claimed by them here, that inasmuch ns the statute in force at the time of the alleged commission of the crime charged, had, prior to the time of the indictment and trial of said Howard F. Lawrence, been repealed, that therefore his indictment was without authority of law, and Ms trial, conviction and sentence were illegal and void. And the circuit court so held and adjudged, predicating its'judgment in that behalf, solely upon the authority of In re Kline, 70 Ohio St., 25. While it must be admitted that this judgment of the circuit court finds apparent sanction and support in the language used by this court in the first paragraph of the syllabus of the case relied on, yet inasmuch as the question involved in the present case was neither involved, nor determined by the judgment in the Kline case, a consideration of the facts of that case, having due regard to the question then before the court, makes it clear, we think, that the judgment of this court in that case may not properly be invoked in support of the judgment of the circuit court in the present case.

The repeal under consideration in the Kline case was of the act familiarly known as the “Habitual Criminal Act. ’ ’ Previous to the repeal of said act, and while the same was yet in full force and effect, Kline had been indicted, convicted, sentenced and imprisoned thereunder, and at the time of the repeal of said act, his prosecution was fully ended. There was therefore no question before the court in that case, as to the effect such repeal would or could have on a pending prosecution, or a cause of prosecution existing at the time of said repeal; and section 79, Revised Statutes, was neither involved nor considered in the determination of that case. The first paragraph of the syllabus in the Kline case is as follows: “Where a statute defining a crime and prescribing the punishment therefor is repealed at any time before final judgment thereunder, such repeal forecloses all further proceedings in such prosecution unless a contrary intent appears in the repealing statute. ’ ’ The language employed in this, paragraph, considered independently, and apart from the particular question then before the court for determination, is misleading, and undoubtedly states the rule of law too broadly. While, unquestionably, the law is, that the repeal of a statute which authorizes a prosecution and imposes a penalty, operates to prevent any prosecution, trial or judgment thereafter for an offense committed against said statute while it was yet in force, unless a contrary intent appears in the repealing statute, or some other then existing statute, yet it is equally the well settled law, of this state at least, that it is not necessary upon the repeal of a criminal statute., in order to preserve or save existing causes of prosecution, or the right to prosecute therefor, that the intent so to do shall appear in the repealing statute itself, for by section 79, Revised Statutes, it is expressly provided, that the repeal of a criminal statute shall in no manner affect causes of prosecution existing at the time of the repeal, unless it be otherwise expressly provided in the repealing act. Section 79 is as follows: “Whenever a statute is repealed or amended, such repeal or amendment shall in no manner effect (affect) pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not effect (affect) pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment effect (affect) causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act. ’ ’ In the present case, the indictment against the defendant Howard F. Lawrence was found and returned by the grand jury of Holmes county, on September 29, 1903. The crime charged in said indictment was alleged to have been committed by him on April 26, 1901. The statute defining the crime charged, and in force on April 26, 1901, is section 6816, Revised Statutes, which provides as follows: “Whoever has carnal knowledge of a female person, forcibly and against her will, or, being eighteen years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape. ’ ’ This statute in its present form was enacted March 3, 1896 (92 O. L., 54), and it has not since, been either amended or repealed. The punishment upon conviction under this section, is prescribed and provided for in section 6817, Revised Statutes, which section, at the time of the alleged commission of the crime charged, read as follows: “A person convicted of rape upon his daughter, sister, or female person under twelve years of age, shall be imprisoned in the penitentiary during life; and a person convicted of rape upon any other female person shall be imprisoned in the penitentiary not more than twenty or less than three years. ’ ’ Between the date of the commission of the alleged crime and the time of the finding of the indictment, to-wit: on May 2, 1902, above section 6817 was amended (95 O. L., 344), and said original section 6817, in force on April 26, 1901, was repealed. The repealing act containing no saving clause as to then existing causes of prosecution. Did this repeal of section 6817, as held by the circuit court, destroy, or take away, the right of the state to prosecute for offenses existing under section 6816, at the time of such repeal? This, we think, is answered, not only by the provisions of section 79, Revised Statutes, but also by the opinion of this court in Chinn v. State, 47 Ohio St., 579. In the latter case, Chinn was indicted at the May term, 1890, of the court of common pleas of Lawrence county, for the crime of incest. The indictment charged the crime to have been committed August 10, 1879; subsequent to the latter date, but prior to the date of the finding of the indictment, the statute in force at the time of the alleged commission of the crime had been repealed. Minshall, C. J., in the opinion in that case, discussing the effect of such repeal, says: “though the offense charged in the indictment is laid as having been committed before the repeal, yet, by virtue of section 79, Revised Statutes, the right of the state to prosecute for existing offenses, was not affected by the repeal. Railroad Co. v. Belt, 35 Ohio St., 479-481.” This case is not in conflict with the judgment in the Kline case, and must be held, we think, to be decisive of the question now under consideration in the present case. It follows, therefore, that the circuit court erred in holding, that the repeal of original section 6817, deprived the state of all right thereafter to' prosecute the defendant, Howard F. Lawrence, for a cause of prosecution existing against him at the time said section was repealed. And this result follows, although it be admitted, as claimed, that sections 6816 and 6817 are so related and dependent, that legislation affecting one necessarily affects both. Palmer v. State, 42 Ohio St., 596; United States v. Barr, 4 Sawyer, 254; State v. Shaffer, 21 Ia., 486; State v. Smith, 62 Minn., 540; Rooney v. North Dakota, 196 U. S., 319; Sutherland on Statutory Construction, sec. 287. The fourth, tenth, eleventh, twelfth, fourteenth, fifteenth and sixteenth, of the above assignments of error, were sustained by the circuit court upon the sole ground, that the repeal of original section 6817, Revised Statutes, without saving clause in the repealing act, left the state without right'to prosecute the defendant for an offense committed previous to the time of such repeal. For reasons above stated, this we think was erroneous. We are further of opinion, that the circuit court erred in sustaining the third, eighth and ninth assignments in the petition of plaintiff in error in that court. Under the ninth assignment, which was, “that the court of common pleas erred in refusing to give the special charges requested by the plaintiff in error, ’ ’ the circuit court held^ that requests number three and four should have been given and that the refusal of the court to give the same was error. This holding of the circuit eourt was evidently an inadvertence for an inspection of the bill of exceptions in this case discloses the fact, that said original requests number three and four are each attached to the bill of exceptions, and each bears the endorsement, presumably in the handwriting of the trial judge, “approved and given,” and it further appears by affirmative statement in the bill itself that both these requests were given as requested. The sixth assignment of error in the circuit court was that: * ‘ The court erred in admitting testimony offered on the trial, by the state, and to which plaintiff in error at the time objected.” On the trial of this cause in the court of common pleas the testimony disclosed that sometime during the month of August, 1903, the prosecuting witness Gambia Kasner, made complaint in bastardy against the defendant, Howard F. Lawrence, charging him with the paternity of the child with which she alleged she was then pregnant, and which she claimed was begotten on the fifteenth day of May, 1903. Much testimony was offered and admitted, over the objection of the defendant, tending to show that the defendant, Howard F. Lawrence, on divers occasions and to different persons, confessed or admitted that he had had sexual intercourse with said Cambia Kasner on or about May 15, 1903, and that he was the father of her unborn child. Many of these confessions and admissions so made by defendant, had relation solely and only, to acts of sexual intercourse had by him with said Cambia Kasner on or about May 15, 1903, more than two years after the time of the commission of the alleged offense for which he was then being tried. These acts of sexual intercourse thus admitted by defendant, having confessedly occurred more than two years after the commission of the offense charged, and after said Cambia Kasner had attained the age of sixteen years, could have no possible relation to, nor did they in any manner or degree, tend to support or prove, the crime charged against the defendant in the indictment. Such evidence was therefore, not only irrelevant and incompetent, but it was, we think, highly prejudicial to the defendant, and the circuit court properly so held. It follows from the foregoing, that the judgment of the circuit court reversing the judgment of the court of common pleas, must be affirmed, and that the order made by the circuit court discharging the defendant Howard F. Lawrence from custody must be vacated and set aside, and judgment will be entered accordingly and this cause remanded to the court of common pleas for further proceedings according to law.'

Judgment of reversal affirmed, and order discharging defendant from custody is vacated and set aside, and this cause remanded to the court of common pleas for further proceedings according to law.

Shauck, C. J., Price, ' Summers and Spear, JJ., concur.

Davis, . J., concurs in the first proposition of the syllabus.


author: By the Court.

text:
    The State of Ohio v. Dangler.

      Prosecution for non-support of parent — Must be instituted in county where defendant resides — At time of non-support— Section 7017, Revised Statutes — Offenses' against public policy.

      1. A prosecution under section 7017-3, Revised Statutes, for nonsupport of a parent, must be instituted in the county in which the defendant resides, at the time he neglects or refuses to furnish the support.
    2. In a prosecution under said section, commenced by indictment in the court of common pleas of the county in which the parent of defendant resides, where the evidence showed, without contradiction, that during the whole of the time laid in the indictment, the defendant was a non-resident of, and was absent from, the county in which said indictment was found and prosecution commenced, and that at . no time during said period was he within said county, it was properly held by the court of common pleas that it was without jurisdiction of said offense, and a verdict for the defendant was properly directed.
    (No. 9510
    Decided March 6, 1906.)

      Exceptions by prosecuting attorney to decision of the court of common pleas of Lucas county.
    The defendant, Mathew J. Dangler, a resident of Fulton county, Ohio, was, under section 7017-3, Revised Statutes, indicted by a grand jury of Lucas county, Ohio, for non-support of his mother, Margaret Dangler, who was a resident of said Lucas county. On the trial of the cause in the court of common pleas of Lucas county, the . evidence introduced on behalf of the State established the fact, that during the whole of the time laid in the indictment, to-wit: from January 1, 1903, to January 1, 1904, said Margaret Dangler, mother of defendant, was a resident of, and was actually and continuously present in, said Lucas county. It was further proven or admitted, that the defendant, Mathew J. Dangler, during the whole of said period was- a resident of Fulton county, Ohio, and was not at any time present in said county of Lucas. At the conclusion of the state’s evidence, the trial court being of opinion that the offense charged- in said indictment against the defendant, if committed by him, was committed in Fulton county and not in the county of Lucas, and that the court of common pleas of Lucas county was therefore without jurisdiction to try said cause, on motion of counsel for defendant, directed •a verdict of acquittal and discharged the defendant. To this decision of the court the prosecuting attorney duly excepted, and now prosecutes this proceeding*, under favor of sections 7305 and 7306, Revised Statutes, to obtain the decision of this court as to the law to govern in similar cases.

      Mr. William G. Ulery and Mr. Holland C. Webster, for the State.

      . Mr. ü. G. Hahn and Mr. Bay M. Lance, for defendant.
   By the Court.

The question presented by the record in this case is one of venue or jurisdiction. Generally speaking, it is a fundamental rule of criminal procedure that one who commits a crime is answerable therefor only in the jurisdiction where the crime is committed, and in all criminal prosecutions, in the absence of statutory provision to the contrary, venue must be laid as in the county of the offense, and it must be proved as laid. Section 7263 of the Revised Statutes of Ohio provides: “All criminal cases shall be tried in the county where the offense was committed, unless it appear to the court, by affidavits, that a fair and impartial trial can not be had therein; in which case the court shall direct that the person accused be tried in some adjoining county.” It is therefore only necessary in order to determine the proper venue or place of trial, to ascertain in what county the offense charged in the indictment was actually committed. An offense is committed in that county in which the acts constituting the same are done. And within the -meaning of the statute under which defendant was, in this case,indicted, the omission or neglect of a child to provide for the parent, is as much an act of such child, although negative in character, as is, or would be, his positive refusal to provide. In the present case the defendant, Mathew J. Dangler, was indicted and prosecuted for a violation of section 7017-3, Revised Statutes, which provides as follows: “Any adult person, a resident of this state, having a parent within this state, said parent being destitute of means of subsistence and unable either by reason of old. age, infirmity or illness to support himself or herself, who is possessed of, or able to earn, means •.sufficient to provide such parent with necessary shelter, food, care and clothing, and neglects or refuses aso to do, shall, upon conviction, be deemed guilty of a misdemeanor and punished by imprisonment in jail or in a workhouse, at hard labor, for not more than one year nor less than three months; provided, however, if, after such conviction and before sentence, such person shall appear before the court in which such conviction shall have taken place and enter into bond, with good and sufficient surety to be approved by said court, to the state of Ohio in the penal sum of $1,000, conditioned that he will furnish such parent with necessary and proper shelter, food, care and clothing, the said court shall suspend sentence therein. ’ This statute defines and prescribes but a single offense; that of nonsupport of a parent; and it is the act of the child in failing to furnish support, under the conditions named in the statute, that constitutes the offense therein defined. Therefore, the other elements of the offense being present, the offense is committed, and is complete, in the county in which the child, charged with the duty of providing support, resides, at the time of his neglect or refusal to furnish the same. In the present case, that was in Fulton county and not in the county of Lucas. The record in this case discloses that at no time, within the time laid in the indictment, was the defendant, Mathew J. Dangler, either actually or constructively present in Lucas county. We are of opinion therefore that the court of common pleas correctly held in this case, that if the offense charged against defendant was committed by him, that such offense was committed in Pulton county and not in the county of Lucas. ,

, JhxcepUons overruled.

Shatjck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.


author: Price, J.

text:
    Weaver v. The State of Ohio.

      Keeping place where intoxicating liquors are sold — Sections 4864-201) and 6942, Revised Statutes — Charges under separate sections for one offense — Error to inflict punishment under two sections, when — Liquor laws.

    1. Where the first count of an indictment charges the defendant with keeping a place where intoxicating liquors are “kept for sale, given away, or furnished for beverage purposes,” in violation of section 4364-20&, Revised Statutes, and the second count charges him with keeping a place where intoxicating liquors are sold in violation of section 6942, Revised Statutes, each count covering the same period of time, and the evidence at the trial establishes the fact that during all such period, the defendant was the keeper of but one place where intoxicating liquors were sold, there is but one offense, and it is error for the court, on a verdict of guilty under each count, to inflict the penalties prescribed by each of said sections.

      2. Where on conviction of keeping a place where intoxicating liquors are sold in violation of section 6942, Revised Statutes, the cburt orders the place to be shut up and abated as a common nuisance, the keeper of such place is entitled under said section to the privilege of giving the bond provided for therein, for the purpose of avoiding the enforcement of the order of abatement.
    (No. 8970
    Decided March 6, 1906.)
    Error to the Circuit Court of Knox county.
    At the May term of the court of common pleas ©f Knox county, held in 1903, the grand jury of that county indicted the plaintiff in error on two counts, which are: •
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of Knox, impaneled, sworn and charged to inquire of crimes and offenses, committed within said county of Knox, in the name and by the authority of the state of Ohio, on their oaths find and present, that William B. Weaver, late' of said county, from the tenth day of April, in the year of our Lord one thousand, nine hundred and three, until the eleventh day of May, one thousand^ nine hundred and three, at the county of Knox aforesaid, in the municipal corporation of Mt. Yernon, in said county of Knox and state , of Ohio; not 'being then and there a regular druggist, and hot being then and there a manufacturer of intoxicating liquors from the raw material, did unlawfully keep a place where intoxicating liquors were then and there- sold as a beverage, which said keeping of said place for the purpose as aforesaid was then and there prohibited and unlawful, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Ohio. .

      Second. Count. And the jurors of the grand jury aforesaid, on their oaths aforesaid, and charged to inquire of crimes and offenses committed within said, county of Knox as aforesaid, in the name and by the authority of the state of Ohio, on their said oaths do further find and present that William B. Weaver, late of said county, on the tenth day of April, in the year of our Lord, one thousand; nine hundred and three, and from that day until the commencement of the proceedings herein, to-wit: on the eleventh day of May, one thousand, nine hundred ■and three, at the said county of Knox in the state of Ohio, and -in the municipal corporation of Mt: Vernon was and has been unlawfully the keeper of a place located at South Main street in said municipal corporation of Mt. Vernon in said county of Knox and state of Ohio, where intoxicating liquors were and have been then and there sold by the said William B. Weaver in violation of the acts of the general assembly of the state of Ohio, in reference to the sale of intoxicating liquors in the state of Ohio, to the common nuisance of the citizens and people of the state of Obio, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.
    “Columbus Ewalt,
    ' “Prosecuting Attorney, Knox County, Ohio.”

    To this indictment the accused on being arraigned plead not guilty. The case came on to be tried at the same term of the court.
    As a part of the case to be made for the state, the minutes of the council of the city of Mt. Vernon under date of March 11, 1903, purporting to be the record of the proceedings relating to a canvass of the poll-books and tally-sheets of a special election held in said city on the tenth day of March, 1903, under what is commonly called the Beal local option law, were offered in evidence. The record was admitted and the defendant excepted. Objections were made to other evidence offered and introduced by the state, and exceptions were saved.
    After the close of the evidence, the case was argued by counsel, and thereupon the court charged the jury, who found the defendant “guilty as he stands charged in each count in the indictment.”

      A motion for new trial was overruled and the court pronounced the following sentence: “It is therefore considered and adjudged by the court on the first count in said indictment, that the said defendant, William Weaver, pay the fine of two hundred dollars and the costs of this prosecution, and that he stand committed to the workhouse of the city of Columbus, Ohio, until the amount of said fine and costs shall be paid or secured to be paid, or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or otherwise legally discharged.”
    “And on the second count in said indictment it is considered and adjudged by the court, that the said defendant, William B. Weaver, be imprisoned in the workhouse of the city of Columbus, Ohio, and kept at hard labor for the term of thirty days, that he pay a fine of one hundred dollars and the costs of this prosecution and stand committed to said workhouse until said fine and costs are paid or secured to be paid, or until he be discharged- therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or be otherwise legally discharged. ’ ’
    “And it is further considered, adjudged and found by the court that the place where such intoxicating liquors were sold by defendant in violation of the laws of Ohio, is a common nuisance, and it is hereby decreed and ordered by the court that the defendant shut up and abate the same.”

    The defendant excepted to the judgment rendered, prepared and had allowed a bill of exceptions containing the evidence and proceedings on the trial, and filed the same with a petition in error in the circuit court. That court affirmed the judgment of the court of common pleas, and error is prosecuted in this court to reverse both judgments.

      Mr. William M. Koons, for plaintiff in error,
    cited and commented upon the following authorities:

      Webb v. State, 29 Ohio St., 351; Coble v. State, 31 Ohio St., 100; Endlich on Interpretation of Statutes, secs. 77, 80, 126, 128, 183, 241, 264, 341, 324 and 526; 1 Best’s Principles of Evidence, sec. 12, p. 205; Pelham v. Steamboat Messenger, 16 La. An., 99; Harrison v. Leach, 4 W. Va., 383; Miller & Gibson v. State, 3 Ohio St., 476; Perry County v. Jefferson County, 94 Ill., 214; Harrington v. Trustees, 10 Wend., 547; State v. Pierce, 14 Ind., 302; State v. Horsey, 14 Ind., 185; Cincinnati v. Connor, 55 Ohio St., 82; Moore v. Given, 39 Ohio St., 662; Plank Road Co. v. Cotton, 12 Ohio St., 263; State v. Halliday, 63 Ohio St., 165; Kent’s Commentaries, 463; United States v. Tynen, 11 Wall., 88; State v. Smith, 44 Tex., 443; Johns v. State, 78 Ind., 332; Beach on Intoxicating Liquors, sec. 116; Aultfather v. State, 4 Ohio St., 467; O’Keefe v. State, 24 Ohio St., 175; Hirn v. State, 1 Ohio St., 20; Pierce v. Board of Education, 8 Dec., 648; 1 N. P., 286; secs. 4364-20a, 4364-20b, 6942 and 7284, Rev. Stat.

      Mr. L. C. Stillwell, prosecuting attorney, for defendant in error, submitted no brief.
   Price, J.

In the progress of the trial certain evidence in behalf of the state was objected to as incompetent, and included in this class is the record or minutes of the city council of the city of Mt. Vernon, purporting to show the results of an election held in said city under the provisions of section 4364-20& and section 4364-20c, Revised' Statutes, commonly known as the Beal local option law. The .ground of exception seems to be, that the minutes offered to prove the canvass of the votes, tally-sheets and poll-books, do not show when the election was held, and that such date is important in order to determine whether thirty days had elapsed between the election and the time the offense charged in the indictment had' been committed.

The canvass was made on the eleventh day of March, 1903, as appears by the record of the same, and after Mating the question voted upon, it is said that the vote was taken on the tenth day of March, 1903. An abstract of the vote follows showing the whole number of votes in favor of the sale of intoxicating liquors to have been 877, and the whole number of votes against such sale to have been 1126. There is no uncertainty in the results, and the only defect in the record of the proceeding which counsel points out, is that in the certificate of the mayor and clerk, the year in which the election was held is left blank. The month and day of the month do appear therein, and in the first part of the record of the canvass, the following statement is found: “March 11, 1903. This day the city clerk called to his assistance O. Poppleton, mayor of the city of Mt. Vernon, Ohio, and they proceeded to open, examine and canvass the poll-books and tally-sheets of a special election held in said city on the tenth day of March, 1903, under a law known as the Beal law, etc. •

Taking the entire record of the canvass and the declaration of its results, it is sufficiently clear that the election was held on the tenth of March, 1903.

The indictment was found at the May term of the common pleas court for the year 1903, and it charges in each count that the first day of the continuing offense alleged, was the tenth day of April, 1903, which was thirty days after said election. ■

We think there was no error committed in admitting the record showing the result of the election.

Other questions were raised on the admission of evidence offered by the state, but they are of minor importance, and none of them are of sufficient merit to justify a reversal of the judgment.

We come now to the character of the indictment, and a consideration of the statutes involved in each count.

Evidently the first count is intended to charge a violation of section 4364-205, Revised Statutes, which is a part of the so-called Beal law. That count charges that the accused, Weaver, in said county of Knox and in the municipal corporation of Mt. Vernon, from the tenth day of April, in the year of our Lord one thousand nine hundred and three, until the eleventh day of May, one thousand nine hundred and three, not being then and there a regular druggist, and not being then and there a manufacturer of intoxicating liquors from the raw material, did unlawfully keep a place where intoxicating liquors were then and there sold as a beverage, which keeping of said place for the purpose as aforesaid was then and there prohibited and unlawful, contrary to the statute, etc. Such is the substance of the count.

The second count, and which is fully copied in our statement of the case, is framed under the provisions of section 6942, Revised Statutes, which forbids the keeping of a place where intoxicating liqnors are sold in violation of law. It provides that “a keeper of a place where intoxicating liquors are sold in violation of law shall be fined,” etc. This section had its origin in section 4 of the act of 1854, entitled “An act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio.” S. & G. Stat., p. 1431. Its anathema is hurled against keeping a place where intoxicating liquors are sold in violation of law. So also with section 4364-205, Revised Statutes, whereby, after the electors of the village or city by majority vote against the sale' of intoxicating liquors therein, it becomes unlawful, from and after thirty days from the date of such election, “for any person personally or by agent, within the limits of such municipal corporation, to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such intoxicating liquors are kept for sale, given away or furnished, for beverage purposes. ” ■

Therefore in substance and effect each count charges the accused with having, between the dates named, kept a place where intoxicating liquors were sold in violation of law.

Moreover each count charges that the accused unlawfully kept the place where the liquors were sold from the tenth day of April, 1903, until the eleventh day of May, 1903. If he kept but one place during that period, it seems plain that he is twice charged in the indictment with committing the same offense. The evidence establishes, and the state concedes that he kept but one place during the period covered by each count. Even where there is a dispute as to the identity of the two offenses, (if it appears on the surface of the indictment that they are different), the identity of the two may be shown by parol evidence. This, is decided in Bainbridge v. State, 30 Ohio St. 264. It is also held in that case, that proof that the evidence necessary to sustain the second indictment would have been admissible and sufficient to procure a conviction under the first, generally makes a prima facie case which the state may meet with proof that the offenses charged were not the same.

But we are not troubled with the application of this rule in this case, because the undisputed testimony in the case shows that, during the time laid in each count, the accused kept but the one place, and while the offense described in the first count is defined by one section of the statute, and the offense described in the second count is defined also by another section, there was in fact but one offense committed.

If the counts embraced in the indictment before us, had been made the subject of two separate indictments, and Weaver had been either convicted or acquitted on one, could he, when called to trial on the second indictment, plead autre Fois acquit, or autre Fois convictf The charges in legal effect being the same, and the evidence upon which the first case was tried being essential to support the second indictment, undoubtedly the plea would be good. He was once in jeopardy, and in fact was once tried for the same offense.

Under the act of the general assembly passed May 1, 1854, “to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio,” it was unlawful, (1) for any person or persons by agent or otherwise, to sell in any quantity, intoxicating liquors to be drank in, upon or about tbe premises where sold, etc.; (2) to sell such liquors to minors unless upon written order of parents, etc.; (3) to' sell such liquors to persons intoxicated or who are in the habit of getting intoxicated. See S. & C. Stat., p. 1431.

It seems to have occurred under the operation of that law, that liquors were sold to a party to be drank upon the premises where sold, the party being at the time a minor and intoxicated. The question was raised whether a conviction or acquittal on the charge of selling to be drank upon the premises where sold, would bar a prosecution for selling to a minor, and a prosecution for selling to one intoxicated, all being sales to the same person and but the one transaction.

The question was before the court in Miller & Gibson v. The State, 3 Ohio St., 476-488, where it is held, “if a sale violate all three sections, the offender may be prosecuted under either of them, and his conviction or acquittal will bar a prosecution for the same sale under either of the other two sections.” Why? Because but one purchaser and but one transaction were involved. It is not claimed, nor was it so decided, that a conviction or acquittal under the first, second, or third sections would bar a prosecution under the fourth — keeping’ a place, etc., but the very contrary was held in the case cited. So it seems perfectly clear that the identity of the transaction and the person involved therein was the turning point. So in this case. The criminal transaction described in the first count —keeping the place is the same transaction described in the second count, both as to scope of time alleged, and the character of the offense set out.

Both, sections of the statute alleged to have been violated in this case were in operation when the indictment was found and the accused convicted, and we distinguished this case from Koch v. State, 53 Ohio St., 433, where the conviction under an ordinance was interposed as a bar to a prosecution for an offense against the statute of the state.

After the state- had rested, the time was ripe for Weaver to have asked the state to elect upon which count she relied for conviction; Had this been done, the duty of the court would have been plain. But. no such request was made then or at any time after-wards. At least no such application appears in the record. Has the right of the accused been waived? We think not, because if we are correct in the views-expressed, it became — -not a question of waiver— hut of the authority of the court to inflict two penalties for the same transaction. The verdict of the jury responded to the charge made in each count, and the court sentenced separately under each count.

Under the conceded facts of this case the sentences violate the latter part of section 10 of the constitution of Ohio, which prohibits the twice putting a party in jeopardy for the same offense. The state cannot evade this constitutional guaranty, by including the double charges in the same indictment.

Another observation of the record before us must he made. The sentence under the second count as to fine and commitment, was followed by the judgment — “and it is further considered, adjudged and found by the court, that the place where such intoxicating liquors were sold by defendant in violation of the laws of Ohio, is a common nuisance, and it is hereby decreed and ordered by the court that the defendant shut up and abate the same.”

'As before stated, the second count is under favor of section 6942, Revised Statutes, the part now pertinent being, — “and upon conviction of such keeper, the place where such liquor is sold shall be deemed to be a common nuisance and the-court shall order him to shut up and abate the same, unless he make it appear to the court that he does not then sell liquor therein in violation of law, or gives bond, payable to the state of Ohio, in the sum of one thousand dollars, with sureties to the acceptance of the court, that he will not sell liquor therein in violation of law, and will pay all fines, costs and damages assessed against him for violation of the laws relating to the sale of intoxicating liquors; and the giving away of intoxicating liquor, or other shift or device to evade the provisions of this section shall be deemed and held to be unlawful selling.”

The record does not disclose that Weaver offered to show, that at the time the order of abatement was made, he did not sell liquor at the place in violation of law; but he was entitled to the privilege of giving the bond mentioned in the statute and it does not appear that this privilege was accorded him as a step precedent to the peremptory order abating and shutting up his place as a common nuisance. There are constitutional grounds for this statement. See Miller & Gibson v. State, 3 Ohio St., 477.

In our judgment, the sentences pronounced by the cqurt on the two counts, and the judgment and order of abatement of the premises should be reversed, and they are each and all reversed; and the judgment of the circuit court, affirming said sentences and order of abatement, is also reversed, and following the rule adopted in Carey v. State, 70 Ohio St., 121, this cause is remanded to the court of common pleas for re-sentence, with, instructions that the state elect on which count of the indictment a re-sentence is desired, and if the second count is selected for sentence, that the defendant have opportunity to offer the evidence, or give the bond above referred to.

Judgments reversed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.