author: By THR Court.

text:
    Bronson v. Schneider.

      Corporations — Stockholder's liability — Statue of limitations — When begins to run against creditors of corporation.

    To set the statute of limitations running against a creditor of a corporation, and in favor of the stockholders on their statutory liability, it is necessary that the creditor’s claim he reduced to judgment, and execution returned unsatisfied, or, that the property of the corporation, by some legal proceeding, be put in process of application to the payment of its debts, so as to render judgment and process against it impossible or nugatory -r as, where the corporation has been dissolved, or thrown into' bankruptcy, or placed in the hands of a receiver, or has made an assignment of its^roperty for the benefit of its creditors.
    (Decided June 24, 1892.)
    Error to the Circuit Court of Rucas county.
    The action below was commenced on the 7th day of July,. 1885, by Calvin Bronson, a creditor of the Toledo Stove' Company, which is a corporation organized under the laws of this state, against George Schneider and others, the stockholders of the corporation, for the enforcement of their statutory liability for the payment of the debt ■ due the plaintiff, from the corporation, it being insolvent. The question in the case is, whether the plaintiff’s action, when it was commenced, was barred by the statute of limitations. The facts of the case, so far as they are material to the decision of the question, are as follows:
    On the 28th day of February, 1878, the Toledo Stove Company, made and delivered to the plaintiff, its promissory note of that date, and thereby promised to pay to the order of the plaintiff, the sum of $9,500 in six months, with interest at the rate of eight per cent, per annum after maturity.
    On the same day, the company, to secure the payment of the note, executed and delivered to the plaintiff, its mortgage deed, and thereby conveyed to the plaintiff, his heirs- and assigns, all the real property of the company; and at the same time, in order to,further secure the payment of the note, executed and delivered to the plaintiff, its chattel mortgage, and thereby. conveyed to the plaintiff all the other property of the company. On the 20th day of February, 1879, the plaintiff commenced his action in the court of common pleas, of Rucas county, against the company, asking judgment on the note, and for a foreclosure of his mortgages. On the 22nd day of March, 1879, the company filed its answer, in which it admitted that there was due to the plaintiff on the note, $7,102.80, with interest thereon at 8 per cent, per annum, from August 28, 1878, and alleged that the residue of the amount claimed by the plaintiff was illegal interest. On the 2nd day of March, 1880, a judgment was rendered in favor of the plaintiff and against the company, for the sum of $10,514, and the court ordered all of the property to be sold for the payment of the same. In pursuance of the judgment and ■ order, the property was sold by the sheriff at public sale, to the plaintiff, on the 4th day of September, 1880, the real property for the sum of $2,800, and the other property for the sum of $263.75, and such sales were confirmed by the court on the 9th day of November, 1880. At the time the action to recover judgment on the note and mortgages was begun, on the 20th day of February, 1879, and ever since, the value of all the property of the company did not exceed the sum of $5,000. The real property was, on the 4th day of March, 1880, appraised at $8,000, and after having been twice offered for sale, and nbt sold for want of bidders, was on the 3rd day of August", 1880, re-appraised at $4,200. Since the 20th day of February, 1879, the plaintiff has had possession of all of the prdperty of the company, and no business has been done by it.

      John F. Kumler and É. W. Toller ton, for plaintiff in error.

      Joshua R. Seney, for defendants in error.
   By THR Court.

The plaintiff’s action was not barred. The time within which such action may be commenced, is six years after the cause of action accrues. Hawkins v. Furnace Co., 40 Ohio St., 507. When the creditor’s right of action is otherwise complete, his cause of action against the stockholders accrues upon the insolvency of the corporation'. By insolvency, however, is not meant, simply that the property of the corporation is insufficient to pay its debts. We have heretofore held, that a creditor of a corporation may commence an action against its stockholders to enforce their statutory liability, when his claim has been reduced to judgment, and execution issued thereon has been returned no property whereon to levy, or, when the property of the corporation has been transferred to an assignee for the benefit of its creditors. Morgan v. Lewis, 46 Ohio St., 1; Barrick v. Gifford, 47 Ohio St., 180. Under the constitution and laws of the state, the corporate property is the primary fund for the payment of the debts of the corporation, and the statutory liability of the stockholders is a security to be resorted to only when the payment of its debts cannot be enforced against its property; and hence, to set the statute of limitations running against the creditor and in favor of the stockholders, it is necessary that the creditor’s claim be reduced to judgment and execution returned' unsatisfied, or, that the property of the corporation, by some legal proceeding, be put in process of application to the payment of its debts, so as to render judgment and process against it impossible or nugatory; as, where the corporation has been dissolved, or thrown into bankruptcy, or placed in the hands of a receiver, or has made an assignment of its property for the benefit of its creditors.

Judgment reversed.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    State ex rel. v. Insurance Company.

      Foreign Insurance Companies — Issuing license to, to do business in this state, a ministerial act, and no bar to proceedings in quo warranto — Section $8S, Revised Statutes, construed — What constitutes an incorporated company, under the laws of this state.

      1. A foreign insurance company, exercising in this state franchises and privileges without authority of law, may be ousted therefrom by a proceeding in quo warranlo. State ex rel. v. Life Insurance Company, 47 Ohio St. 167.
    2. The issuing of a license to a foreign insurance company to do business in this state, by the superintendent of insurance, is a ministerial and not a judicial act; and is, therefore, not a bar to a proceeding in quo warranto, where it is charged with exercising franchises and privileges without authority of law.
    S. The provisions of section 282, Revised Statutes, imposing on insurance companies of another state or nation, doing business in this state, the same obligations.and prohibitions, that are imposed in such other state- or nation upon Ohio companies doing business therein, are retaliatory in character, and must, therefore, be confined to such cases as fairly fall within the letter of the statute.
    4. To make a case for the application of the retaliatory provisions of section 282, Revised Statutes, against an insurance company of another state,-doing business in this state, it must be made to appear that an Ohio company has been formed in this state to do substantially the same kind and lihes of insurance; and would, by the laws of that state, be precluded from transacting the same therein, or be subjected to burdens not imposed by the laws of this state on such foreign company.
    5. The making and filing, for the purpose of profit, of articles of incorporation in the office of the secretary of state, do not make an incorporated company; such articles are simply authority to do so. No company exists within the meaning of the statute, until the requisite stock has been subscribed and paid in, and the directors chosen.
    (Decided June 24, 1892)
    In Quo Warranto.

      David K. Watson, Att’y Gen’l, and Harrison, Olds & Henderson, for plaintiff.

      W. J. Gilmore, for defendant.
   Minshall, J.

The defendant is a fidelity and casualty insurance company, organized under the laws of the state of New York, and doing, in this state, what, by the laws of New York, is authorized and known as four lines of such insurance, to-wit: First, against injury, disablement or death of persons resulting from traveling, or general accidents by land or water; Second, guaranteeing tbe fidelity of persons bolding places of public or private trust; Third, upon plate glass against breakage; Fourth, upon steam boilers against explosion, and against loss or damage to life or property resulting therefrom. Its right to do more than one of such lines of business in this state is challenged by the Attorney General on the ground that, by the laws of New York, no company incorporated in this state can transact in that state more than one of such lines of insurance; and, therefore, under the provisions of sec. 282, Revised Statutes, of this state, it has no right to make in this state more than one of the lines of insurance it is doing. That section reads as follows:

“When, by the laws of any other state or nation, any taxes, fines, penalties, license fees, deposits of money, or of securities or other obligations or prohibitions are imposed on insurance companies of this state, doing business in such state or nation, or upon their agents therein; so long as such laws continue in force, the same- obligations and prohibitions, of whatever kind, shall be imposed upon all insurance companies of such other state or nation doing business within this state, and upon their agents here.”

A demurrer to the petition, objecting to the jurisdiction of the court, as well as to the sufficiency of the pleading, having been overruled, the defendant, as a third defense to the petition, answered, “That under the laws of New York it is legally authorized and empowered to do, and is now doing, the four lines of insurance in that state, which the petition charges it with illegally doing in Ohio; and that under the laws of Ohio a corporation could be legally incorporated and organized with power to do the same four lines of insurance, or any one or more of them therein, but that no such company has yet been organized to do said four lines of insurance in Ohio, and hence no such company has yet made, or could make, application to the proper officers in New York for a license to do said four lines of insurance in the state of New York.” A demurrer to this defense having been overruled, the plaintiff asked leave to reply in substance as follows: That on January 13, 1887, the requisite number of persons, citizens of Cuyahoga county, subscribed and acknowledged articles of incorporation,” stating therein the name, place of business and capital stock of the proposed corporation, and its object, to-wit: Under paragraph 2 of sec. 3641, Revised Statutes, to do the four kinds of insurance now being done by the defendant in this state; and the same having been approved by the Attorney General as in conformity to the laws of the state, were then filed and recorded in the office of the Secretary of State of Ohio, “ whereby,” it is averred, “ an Ohio Corporation was duly and legally formed for the purpose of doing the lines of insurance mentioned in the articles of incorporation.”

As no report has heretofore been made of any of the rulings of the court in the progress of the case, it is proper that two of them should be noticed before passing on the application for leave to reply: That is to say, (1), the jurisdiction of the court, and, (2), the sufficiency of the third defense.

It is claimed that as the defendant is a foreign corporation it cannot be affected by a proceeding in quo warranto in the courts of this state, That it cannot be ousted of the right to be a corporation nor of any of the franchises conferred on it by the laws of New York, is not doubted; but as to such franchises and privileges as are derived from the laws of the state of Ohio, it is as much amenable to the courts of this state as an Ohio corporation, and when found exercising such franchises without authority of law, it may be ousted therefrom, as held in State ex rel. v. Insurance Co., 47 Ohio St., 167, decided since the commencement of this action.

Upon the facts stated in the thirá, defense it is claimed, that the defendant is not affected by the provisions of section 282, Revised Statutes, on which the demand of the state is based. The character of this section is relative to its construction. It is claimed to be reciprocal in character, ánd should therefore be liberally construed. A little reflection will, we think, show that it is -not of this nature, but, upon the other hand, retaliatory, and should therefore be strictly construed; or, in other words, not applied to a case that does not fairly fall within its letter. Reciprocity expresses the act of an interchange of favors between persons or nations ; retaliation, that of returning evil for evil, or disfavors for disfavors. Accurately speaking, we reciprocate favors and retaliate disfavors. This then is a retaliatory statute, It treats the companies of other states as Ohio companies are •.treated in those states; but the moment it is made to appear that Ohio companies are not treated with the same favor in another state, that companies of that state are treated in Ohio, a case is made for the application of its provisions, and retaliation follows as a result.

It is true that the ultimate object of the statute is to secure reciprocity; but what we have now to do with, is not its ultimate, but its immediate object, and that is to retaliate on the companies of a given state, disfavors shown to Ohio companies in the same state,

'The question then arises, the averments of the third defense being admitted, is a case made for the application of the provisions of the statute to the defendant? We think not. It is admitted that Ohio companies may be, but it is averred that none have been, formed to do the four lines of insurance which the defendant is doing in this state. Hence, no case is made for the application of the statute— the language being, “ When, by the laws of any other state * * any * * prohibitions are imposed on insurance companies op this state, doing business in suck state, * * so long as such laws continue in force * * the same prohibitions, of whatever kind, shall be imposed upon, all insurance companies of such other state * ‡ doing business in this state.” To bring a case within the statute, there must, at least, be an Ohio company formed to which the prohibitions of the New York statute would apply, should it attempt to enter and do business in that state. It is said that the very reason that there are no such Ohio companies, may be the existence of this New York statute. This is a very remote conjecture, yet admitting its possibility, does not vary the language of . our statute. If it should be deemed desirable to foster the formation of such Ohio com-patties to do business in other-' states, it ■ can easily be accomplished by the legislature making the statute apply where Ohio companies may be, as well as where they are, formed to do such business in other states. We do not believe that any lawyer would affirm that an indictment drawn upon such a statute as this would be good, that failed to aver the existence of an Ohio company to which the discriminating features of the statute of the other state might apply. And there is no reason why a different rule of construction should be adopted in this proceeding. The consequences to the defendant are of a penal nature. If found guilty as charged, it must not only abandon the business it has established, but cease to do more than one of its lines of business in the state, so long as the legislation of the two states remains unchanged.

In construing this statute according to its letter, we have, as we believe, given expression to the intention of the legislature. It is a just compliment to human nature to say, that, as a general rule, every man would prefer to have his favors construed largely and his. disfavors narrowly: In other words, no one would deliberately do more injury to another than is required by his own interests, and would regard it as an honor to be as generous as he could; and, that such are the sentiments of the civilized man, is apparent from all writers upon public law.

Decisions in some of the other states have been cited which, it is claimed, sustain the construction placed on our statute by the relator. We have examined these decisions» and find none of them upon statutes worded as our own’ The case of State ex rel. Phillips v. Fidelity & Casualty Co., 77 Iowa 648, (being the same company defendant in this case) is relied on as in point. By the language of the statute in that state (Iowa), it is put into operation “ When by the laws of any other state any * * * prohibitions are imposed, or would be imposed, on insurance companies of this state doing, or that might seek to do, business in such other state.” It was there held, that through the language of their statute* just quoted, the existence of the law in another state, is sufficient to put the law of Iowa in force, without showing that the state of New York has ever actually enforced its law against an Iowa company. But, we submit, that this is so by reason of language found in the Iowa statute, and which is not found in our statute; and to give to our statute the same construction would require us to read into it, language found only in the Iowa statute. The following cases are also cited as authority. Phœnix Ins. Co. v. Welch, Supt. 29 Kan., 672; State v. Fidelity & Casuality Insurance Co., 39 Min. 539; Insurance Co. v. Swigert, 104 Ill. 655; Talbott v. Fidelity & Casualty Co., 22 Atlantic Reporter, 395. The wording of the statue in each case, as before stated, differs from our own; but, if it were otherwise, we should require more cogent reasons than any that have been suggested, to induce us to depart from well recognized principles of construction, by reading into a statute of this character, words not found in its text, for the purpose of giving it a construction in conformity to its supposed policy.

The next question is, should leave be given to file the proposed reply to the third defense ? We think not, for the reason that it does not show that an Ohio company has been formed to do the four lines of insurance in which the defendant is engaged. It will be observed that it does not aver that any officers or directors have been chosen, or that any of the stock has been subscribed, or that any organization whatever has been effected. It is simply that “articles of incorporation” have been made, and filed and recorded in the office-of the Secretary of State. Articles of incorporation do not make an incorporated company; they are simply authority to do so.

Before disposing of the case, it may be well enough to notice another defense, relied on in the answer, and to which a demurrer has been sustained; and that is, the license granted the defendant to do business in this state by the Huperintendant of Insurance. We are all of the opinion that the issuing of a license to a foreign insurance company to do business in this state, is a ministerial and not a judicial act, and, whilst it will protect the company in the transaction of its business during its continuance, is not a bar to a proceeding against it in quo warranto, where it is found to be exercising any of the franchises of the state, without authority of law. State v. Fidelity & Casualty Ins. Co., 39 Min. 538; and cases cited in brief of counsel for relator.

Application for leave to reply to the third defense of the answer overruled, and petition dismissed.


author: WiKUAMS. J.

text:
    Mullen v. Peck et al.

      Intoxicating liquors — Damages from unlawful sale of — How enforced against premises where sold — Practice—Estate in remainder, when not liable — Constitutional law.

    1. It is not essential to the right of the plaintiff in an action under section 4364, of the Revised Statutes, to subject the premises where intoxicating liquors were unlawfully sold, to the payment of the damages caused by such sales, either, that the premises should have been leased for the purpose of selling liquor thereon in violation of law, or, that the owner or lessor should have knowledge that such liquors were to be so sold thereon, or knowingly permitted the sales which caused the damages. Such action may be maintained, if the premises were leased to be used for the sale of intoxicating liquor, or were permitted by the lessor to be so used.
    2. Where the premises on which the liquors were sold, were occupied by the seller under a lease from the owner of a life estate therein, the estate in remainder cannot beheld liable for the damages caused by such sales.
    3. Section 4364, of the Revised Statutes, is not in conflict with the fourteenth amendment to the constitution of the United States, nor with section sixteen, of article one, of the constitution of this state: it neither deprives the owner of his property without due process of law, nor of his remedy by due course of law.
    (Decided June 24, 1892.)
    Error to the Circuit Court of Trumbull county.
    The original action was commenced by Margaret Mullen, against Rebecca J. Peck, Alanson Peck and Mary J. Peck, in the Court of Common Pleas of Trumbull county. The petition alleges, that the plaintiff, on November 19, 1887, recovered a judgment in that court, against George Clemens, for the sum of eleven hundred dollars damages,- and forty-nine dollars costs of suit, in an action brought by her against Clemens under section 4357, of the Revised Statutes, for injuries caused her by the sale, by Clemens, of intoxicating liquors to her husband. The petition further alleges, that the liquors were so sold to the plaintiff’s husband, on certain premises specifically described, situated in the city of Warren, Trumbull county, which were then, and are still owned by the above-named defendants, Rebecca J. Peck, Alanson Peck, and Mary J. Peck, who, at the time the sales were made to the plaintiff’s husband, knowingly permitted the premises to be used for the sale of intoxicating liquors. The plaintiff, being unable to make any part of' her judgment out of Clemens, sought by her action below, to subject to its payment, the premises of the Pecks. The answers filed by the defendants, deny the recovery of the alleged judgment against Clemens, and aver there is no record of such judgment. They also deny, that the defendants, or either oí them, knowingly permitted the premises to be used for the sale of intoxicating liquors. The separate answer of Alan-son and Mary J. Peck, avers, that Caleb Peck, who died seized of the premises described in the petition, by his last will and testament, which was duly admitted to probate and record in Trumbull county, devised the premises “ to said Rebecca J. Peck during her natural life, and after her death, over to these answering defendants; that under said will, said Rebecca, who is their mother, entered into possession of said premises, and has ever since, and still does, control the same; that these defendants have not and could not under the will of the said Caleb, or otherwise, control the same; and that they have not leased'the same or exercised any acts oí ownership whatever over the same, and did not lease the same to the said Clemens, or permit him to use them for any purpose whatever.”
    The cause, having proceeded to trial and judgment in the court of common pleas, was appealed to the circuit court, which, upon the trial, separately stated its findings of fact, and conclusions oí law. It appears from the findings of fact, that the plaintiff, on the 12th day of November, 1887, duly recovered judgment against George Clemens, as averred in her petition, for the sum therein set forth, and that the same remains unsatisfied; that the judgment so recovered was for damages caused the plaintiff, by intoxicating liquor which Clemens unlawfully sold her husband on the premises described in the petition, on the 28th and 29th days of May, 1885; at which times, Clemens kept a saloon upon the premises, and was selling intoxicating liquors thereon; that Clemens went into possession of the premises under a written lease executed by Caleb Peck in the ye^r 1880, which lease did not specify for what purpose the premises were to be used, but contained a provision that no liquor should be sold thereon contrary to law; that in the year 1883, Caleb Peck died, leaving a will, which was duly admitted to probate, whereby the premises leased to Clemens were devised to Rebecca J. Peck, the testator’s widow, during her life, and after her death to Alanson and Mary J. Peck, children of the testator; and after the death of Caleb Peck, Clemens continued in' possession of the premises with the consent and agreement of said Rebecca, and was so in possession on the 28th and 29th days of May, 1885, when the unlawful sales of intoxicating liquors were made by Clemens to the husband of the plaintiff; but neither the said Rebecca, or Alanson, or Mary J. Peck had any knowledge of these sales ; nor, had either of them any knowledge that Clemens was selling or giving away liquor upon the premises contrary to law; nor, did they knowingly permit or suffer the premises to be used at any time, by Clemens, or any one for him, fin the sale or giving away of intoxicating liquors 'to any person in violation of law; though, they all knew that Clemens kept a saloon on the premises', and was engaged in the sale of intoxicating liquors thereon. As its conclusion of law, the circuit court held, that to entitle the plaintiff to maintain her action, she must establish, “ either that the premises in question were leased by defendants for the purpose of selling liquor thereon contrary to law, or, that having been leased for a lawful purpose, the defendants knowingly permitted and suffered them to be used to sell liquor thereon contrary to law.”
    Judgment was therefore entered for defendants. The plaintiff applied for a new trial, which was refused, and now prosecutes error to this court.

      T. H. Gilmer, and C. H Strock, for plaintiff in error.
    Brief of T. H. Gilmer.

    It was evidently the intention of the legislature, in passing section 4364, to give the party liable to injury from the sale of intoxicating liquors some new remedy, or at least a remedy in addition to that given in section 4357.
    To construe section 4364 as it reads, would be to give one who had sustained an injury and had reduced their claim to a judgment, such additional remedy. To construe as contended by defendant in error, would be not to give an additional remedy, but would be a far more limited remedy than that provided for in 4857.
    In section 4364 a personal judgment cannot be obtained, but the property on which the sales are made, alone, can be subjected; hence the legislature struck out the words “contrary to this act” aird “contrary to law,” because if they were inserted, then one damaged had better bring his suit under section 4357, making the owner a party, when if he recovered, he or she would recover a personal judgment, by which not only the property on which the sales were made would be subjected to the payment of the judgment, but all other property of every kind owned by the judgment debtor, and such judgment would be a lien on all real estate of the judgment debtor in the county where judgment was taken.
    In this case, had we joined the Pecks in the original action, we would have had one other or further averment to have made; the averment Ijiat they leased the building for unlawful sales, or having leased, they knowingly permitted unlawful sales to be made thereon, and supported said allegations with proof; we would have had a personal judgment against the Pecks as well as Clemens, that would have reached not only the premises where the sales were made, but would have been a lien on all the real estate of the Pecks in Trumbull county. In short, > would have been a personal judgment; whereas, in the present proceeding, the property only where the sales were made is to be. reached.
    But it is said that this would be a hardship and unconstitutional because it would be a taking without due process of law, etc., defendant not having a day in court.
    This point has already been passed on in the case of Anderson v. Brewster 44 Ohio St., 576 and 584; also, the case of Adler v. Whitbeck, 44 Ohio St., 5391
    Brief of C. H. Strock.

    We contend, that the law of -this case is in the exact words of section 4364 as follows: — ■
    “If a person rent or lease to another any building or premises to be used or occupied in whole or in part, for the sale of intoxicating liquors, or permit the same to be so used or occupied in whole or in part, such building or premises so leased, used or occupied, shall be held liable for and may be sold to pay all fines, costs and damages assessed against any person occupying the same,” et seq.

    We believe that the above section should be construed independently of section 4357, and, if so construed, it is not necessary to allege or prove that the defendants had any knowledge of the unlawful sale of intoxicating liquors upon the premises. It being sufficient to show that they knew that intoxicating liquors were, in fact, sold thereon. Such a construction, as above indicated, we think, is in a direct line with the decisions of this court upon the statutes enacted, providing against the evils resulting from the traffic in intoxicating liquors; and upon that proposition, we can use no stronger language than was used by McIuvaxNE J. in Frane v. State, 39 Ohio St., 411, and quoted by Minshali, J. in Adler v. Whitbeck, 44 Ohio St., 567. And in Anderson v. Brewster the court say, in referring to S. & C. 1434, that such liability is continued in section 4364, of the Revised Statutes, and the premises may be sold to pay all fines, costs and damages assessed against any person occupying the same. DicemAN J. 44, Oliio St., 584; 1st. Blackstone Com., page 61.
    Now, the cause that lead the legislature to enact section 4364, is the well recognized fact that the trafficking in intoxicating liquors is the source of great evil by causing intemperance, pauperism and crime. And the spirit and reason of the law, if construed in the light that we read it, is to lessen the places where intoxicating liquors are sold, and the persons engaged in such business. And, further, it is a well established rule in this state, in construeing a statute, that “The mischief to be remedied must be regarded.” Wright 233; Tracy v. Card, 2 Ohio St., 431.
    We believe that the legislature intended by enacting section 4364, to place such restrictions upon the owners of property, who are contemplating to lease the same tobe used for the sale of intoxicating liquors, or who permit such premises to be so used, that they would be careful in selecting their tenants, and through them protect the public from the evil of the traffic in intoxicating liquors. For, if the landlord knows that his property is held liable for the unlawful acts of his tenants, he will either select a good and reliable tenant, or will protect himself by placing such tenant under bonds, and thereby secure himself from damages; and in either event the public is the gainer. But if the courts below are correct by inserting the word “unlawful” before the word “sale”, in the third line of the statute, or the phrase “contrary to law” after the word “liquor”, in the same line, the remedial character of the statute is entirely destroyed, and the legislature might as well have passed so much blank paper.
    We cannot believe otherwise, than the legislature intended to say no more, nor any less, than is said in section 4364, and by enacting it, they desired to place a restraint upon a business that is and has been, for many years, the subject of police regulations in this state, by placing such business in the hands of men who will sell intoxicating liquors only as the law says they may; and if a landlord so far forgets himself, or his duty to the public, as to permit his premises to be used by a person not either morally restrained, or restrained by a good and sufficient bond, then he should suffer the penalty of the law, and make reparation for the damages he has' directly caused; and he should not be permitted to say that he had knowledge of the fact that intoxicating liquors were sold upon his premises, and at the same time evade any responsibility by denying knowledge of any violations of the law, by his tenant who conducts a business fraught with so much evil as the trafficking in intoxicating liquors.

      Charles Fillms, for defendant in error.
    1. The petition in this case is insufficient because it does not appear therein by proper averment that the premises in question were leased for the purpose of selling intoxicating liquors thereon contrary to the law; or that, having leased the premises for a lawful purpose,.the lessor knowingly permitted them to be used for the purpose of selling intoxicating liquor thereon contrary to law.
    Under section 4357 no personal judgment can be recovered against either the seller or the lessor, except for sales made in violation of law. And in such case it would not be sufficient, for example, to show that the sales complained of had been made to a minor or to a person in the habit of getting intoxicated. It must also appear that in the one case the seller or lessor knew the minor to be such, or in the other, that he knew the person to be 'in the habit of getting intoxicated.
    Now, from a general view of the legislation on this subject, from the original act of 1854, down to the commencement of this suit, it would not seem that the legislature intended to establish one rule of liability for the seller and another for the lessor —- and especially that it was not the legislative intent to hold the property of an innocent lessor — innocent of knowingly permitting unlawful sales on his premises — liable for all sales, whilst the guilty sellor is only liable when it appears that he knowingly sold in violation of law. Nor would it seem that the legislature intended to guage the liability of a lessor’s property by a different rule from that by which it guages his liability to a personal judgment. No reason in the principle or policy of the statute can be found authorizing such conclusions as to the legislative intent. A careful examination of the statute itself conclusively establishes that it contains no warrant for such contention. Certainly it would seem that the charging of any less offense against the landlord, to subject his property to the payment of a judgment against the tenant, than is necessary to be charged against the tenant, would not be tolerated. The plaintiff below was bound to set out in her petition against these defendants, in addition to other facts, substantially the same facts respecting the nature and character of the sales, as she was bound to set out in her original petition against Clemens. I am aware that, having done that, the averments could not have been sustained by the record of the judgment in question, for, as has been shown, the petition in that case does not state a cause of action, under section 4357, and consequently her case must have failed for want of proof.
    But, in addition to the above facts, she was also bound to aver that the premises sought to be subjected to the payment of the judgment were leased for the purpose of selling ^iquor thereon contrary to law, or that, having been leased for a lawful purpose, the lessor knowingly permitted them to be used for the sale of liquors thereon contrary to law. This will appear clear when the true meaning and legal effect of section 4364 is understood.
    In order the better to arrive at that meaning, it will be necessary to recur to the original act of May 1st, 1854, and the amendments thereto. 52 O. E- 153; 61 O. E. 24; 63 OE. 149; 67 O. E. 101; 75 O. E. 35.
    Since the amendments above referred to, no substantial change was made in the statute, down to the time of commencing this action; section seven, in the revision of 1880, being divided into sections 4357-8-9-60-61 and 62, and section ten into sections 4363 and 4364. These sections, are in pari materia, and are to be construed together. Baker v. Beckwith, 29 Ohio St., 314; Anderson v. Brewster, 44 Ohio St., 584 ; Zink v. Grant, 25 Ohio St., 352; Justice v. Lowe, 26 Ohio St., 372.
    II. The construction sought to be given section 4364, by plaintiff’s counsel, is in derogation of art. xiv. of the amendments to the Constitution of the United States, and of section 16, art. I, of the Constitution of Ohio.
    The contention of counsel for plaintiff in error, giving all the effect claimed by them to the record of the judgment against Clemens, is, that Mrs. Peck’s property, having been leased by her to Clemens to sell liquor thereon according to law, and having been used by him, without her knowledge, permission or participation in any way, to the injury of Mrs. Mullen, by selling liquor unlawfully to her husband, is now liable to the satisfaction of this judgment. For this claim warrant is found, it is asserted,, in the second clause of section ten, or, as the sections are now arranged, in the first clause of section 4364. To this end they are driven to an exact literal construction of this clause, ignoring the history of the clause itself, its amendments from time to time, as well as the other clauses of the statute in pari materia, and those rules of interpretation, which the wisdom of the courts have evolved for arriving at the true meaning of a law making power in a given enactment!
    It seems to me that their contention upon the question of the meaning of this clause is inadmissible, because it brings the statute into sharp conflict with art. xiv. of the amendments to the Constitution of the United States, and section 16, of art. I, of the Constitution of the state.
    If the statute in question is to be construed as claimed by counsel, what meaning and effect have these solemn constitutional guaranties to Mrs. Peck, who is compelled to stand by and see her property taken, without being able to raise her voice in our courts against it. Her first and only intimation, according to this record, of the existence of this judgment for the satisfaction of which her property is sought to be taken, is a summons notifying her of plaintiff’s demand for the sale of her property by virtue of it. She knew nothing of the original proceeding. She could not defend against it. For aught she knows the judgment was recov■ered by fraud, or the negligence of the defendant, or ■connivance of the parties to it. But it matters not, for it is the end of the law and her recourse under it, so far as she is ■concerned, notwithstanding she is entirely innocent of the cause of complaint upon which the alleged judgment was rendered. Under the contention of counsel for plaintiff, ’the record of the judgment practically settles all questions between the judgment creditor and the property owner. Bringing the property owner for the first time into court, in answer to a summons for an ■ order to sell her property on this judgment, is but a farce and a parody on justice, and the constitutional guaranty that she shall have her day in ■court. 58 Iowa 89 ; Binder & Finkbone, 25 Ohio St., 103 ; Adler v. Whitbeck, 44 Ohio St., 569 ; Anderson v. Breweier, 44 OhioSt., 581.
   WiKUAMS. J.

The plaintiff, Margaret Mullen, having recovered a judgment against George Clemens, for damages resulting from the unlawful sale, by him, of intoxicating liquors to her husband, brought the action below, to subject the premises occupied by Clemens when the sales were made, to the payment of her judgment; the premises then being the property of the defendants below, who, it is alleged, permitted them to be used for the sale of intoxicating liquors thereon.

The action was brought under section 4364, of the Revised Statutes, which reads as follows : “If a person rent or lease to another, any building or premises to be used or occupied, in whole or in part, for the sale of intoxicating liquors, or permit the same to be so used or occupied, in whole or in part, such building or premises so leased, used or occupied, shall be held liable for and may be sold to pay all fines, costs, and damages assessed against any person occupying the same; proceedings may be had to subject the same to the payment of any such fine and costs assessed or judgment recovered, or any part thereof, which remain unpaid, either before or after execution issues against the property of the person against whom such fine and costs or judgment bave been adjudged or assessed; when execution: issues against the property so leased' or rented, the officer shall proceed to satisfy the same out of the building or premises so leased or occupied; if such building or premises-belong to a minor, insane person, or idiot, his guardian having control thereof shall be liable and account to his-ward for all damages on account of such use and occupation, and the liabilities for the fines, costs and damages aforesaid; and all contracts whereby any building or premises are rented, or leased, and the same used or occupied, in whole or in. part, for the sale of intoxicating liquors, shall be void, and. the lessor shall, on and after selling or giving intoxicating, liquors as aforesaid, be considered and held to be in possession of such building or premises.”

The principal question presented is, whether, under this-section of the statute, in order to charge the leased premises where the liquors were illegally sold, with the payment of' a judgment rendered against the seller for damages caused, by such sales, it is essential, either that the premises be let for the unlawful sale of intoxicating liquors thereon, or be permitted by the lessor to be used for such unlawful purpose. Or, may the premises be so charged when they are leased to be used for the sale of intoxicating liquors, or permitted', by the lessor to be so used, if the lease contain a provision that the lessee shall not sell contrary to law, and the lessor have no knowledge of illegal Sales by the lessee?

In support of the judgment-below, it is contended, (1),. that to hold the premises liable under the statute, they must have been leased for the unlawful purpose of selling liquors thereon contrary to law, or, such unlawful use must have been knowingly permitted by the lessor; and, (2), that unless the statute be given that construction, it is unconstitutional. To sustain the judgment of the circuit, court, it is necessary to maintain one or the other of these-propositions.

It is conceded that section 4364, does not in terms,, limit the liability of the premises as stated in the first proposition. Its language is, that the premises “shall be held; liable for * * damages assessed against any person: occupying the same,” if they were rented or leased to be used “for the sale of intoxicating liquors,” or permitted “to be so used;” and not, that the premises shall be held liable if they were rented for the sale of liquors in violation of law, or permitted to be so used; so that, in order to give the statute the effect contended for, it becomes necessary to add, by construction, a provision it does not contain. This, the court is not at liberty to do, unless there is something in the context which justifies it. It is claimed that such construction is warranted, when the section is read in connection with section 4357, which provides: “ Every husband, wife, child, parent, guardian, employer, or other person injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall, after the giving and during the existence of the notice provided for in the next section, have a right of action in his or her own name, severally or jointly, against any person or persons, who, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person; and the owner of any building or premises, and the person renting or leasing the same, having knowledge that intoxicating liquors are to be sold therein, in violation of law, or, having leased the same for other purposes, knowingly permit intoxicating liquors to be sold therein,that have caused the intoxication, in whole or in part, of such person, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors as aforesaid, for all damages sustained, as well as exemplary damages.”

That section makes the lessor, having knowledge that intoxicating liquors are to be sold on the leased premises in violation of law, a joint wrong-doer with the lessee who makes the illegal sales, and authorizesythe person injured thereby, to sue both, or either, for all damages caused by such sales. To maintain the action against the lessor, under that section, it is necessary that he have .knowledge that liquors are to be sold on the leased premises in violation of law, or, that he knowingly permitted the sales that caused the injury. His liability is personal; the damages are made a lien on all of his real estate; and for the payment of the damages all of his property, of every kind, without exemption (except the articles specified in section 5430,) may be taken. Revised Statutes section 4363.

The remedy under section 4357 is more direct, and more comprehensive than that under section 4364. Under the former section, the injured party may recover directly against the lessor, either jointly with the seller, or severally, all damages sustained by reason of the unlawful sales, and immediately siezé, on execution, all of his property, except that specifically exempted, for the payment of the same; while undér the latter section, the remedy is only against the specific property on which the liquors were sold, and must be pursued by separate' action, after the recovery of judgment against the seller. If the same facts, which entitle the party injured, to the more direct and comprehensive remedy, must be established in order to make available the other and more limited one, the latter would appear to be unnecessary, and the section providing for it, without practical operation; for, upon the facts necessary to enable the plaintiff to maintain an action under the latter section, he could under the former section obtain the same, and even greater relief. In accordance with a well settled rule of interpretation, these sections of the statute must be so construed as to make, if possible, all their provisions operative; and to do this, it is only necessary, we think, to accord to the language of section 4364 its plain meaning. That does not make it essential, in order to charge the leased premises where the liquors were illegally sold with the payment of the damages caused by such sales, either, that the premises be leased to be used for the purpose of selling intoxicating liquors thereon in violation of law, or, that the lessor have knowledge that such liquors are so sold, or that he knowingly permitted the sales which caused the damages. It is sufficient, if the premises were leased to be used for the sale of intoxicating liquors, or were permitted by the lessor to be so used. With the policy of the statute, which counsel have discussed at some length, the court is not concerned. The duty is not devolved upon it, to find a good reason for the statute, or one against it. Tbe province of the court is limited to the due administration of the statute as it comes from the hands of the legislature, if it he free from constitutional objection.

Is the section (4364) unconstitutional?. It is contended that it is in conflict with the fourteenth amendment to the constitution of the United States, and also with section sixteen of article one of the constitution of this state, in that, it deprives the lessor of his property without due process of law, and of his remedy by due course of law. In support of this contention, it is argued, that the lessor is not a proper party to the action against the liquor seller, and has, therefore, no opportunity in that action to contest the plaintifPs claim; nor is he allowed, in the action brought against him to subject his property to the payment of the judgment obtained against the seller, to controvert any fact upon which the judgment is founded; and so, it is said, his property may be thus taken without giving him a day in court. .

The position, we think, is not sound. True, the lessor is not a necessary party to the action for damages against the person whose unlawful sale of liquors caused the plaintiffs injury. Whether the court, in the exercise of its discretion, might permit him to intervene and contest the plaintiff’s right to judgment, we need not decide. That question is not before us. It is also true, that the judgment recovered against the seller of the liquor, when not obtained by fraud or collusion, is so far conclusive against the lessor of the premises where the sales were made, that the latter cannot dispute the sales, or their illegal character, or the damages resulting therefiom. But the unlawful sale of liquor by the tenant, resulting in damages to the plaintiff, does not, of itself, create any charge upon the property of the landlord, nor does the judgment against the seller, itself operate to make the property liable for its payment. The premises on which the liquors were sold, can only be held liable for the damages, when they have been leased to be used for the sale of intoxicating liquors, or have been permitted by the lessor to be so used; and, to subject the leased premises to the pay-meat of the judgment recovered against the tenant, an action must be instituted in a court of competent jurisdiction, for that purpose, against the. lessor, and prosecuted to final judgment against him. The plaintiff in that action, must allege in his petition, all the facts required by the statute, to make the premises liable; among them, that the premises were leased by the defendant to be used for the sale of intoxicating liquor, or were permitted by him to be so used, and, that the unlawful sales which caused the plaintiff’s damages were made on the premises. It is competent for the defendant to controvert any or all of the allegations of the petition, and interpose any other defense he may have; and it is incumbent on the plaintiff, to establish on the trial, the facts necessary to entitle him to judgment. Whether the premises are liable for the payment of the damages awarded the plaintiff against the person whose illegal sale of the liquor caused them, is the question which concerns the defendant, and on that question he has his day in court, with full opportunity to be heard. He has the right of appeal from any judgment that may be rendered against him, and may prosecute error as in other civil actions; so that, he is not, in any sense, deprived of his remedy by due course of law, nor of his property without due process of law. Binder v. Finkbone, 25 Ohio St. 103; Bertholf v. O'Reilly, 74 N. Y. 509.

The question arises upon the pleadings, and facts found by the circuit court, whether anything more than the estate which the lessor has in the premises leased, or permitted to be used for the sale of such liquors, can be made liable for the payment of the judgment recovered against the tenant.

It appears from the findings of fact, that the premises on which Clemens made the sales, on account of which the plaintiff recovered her judgment against him, were originally rented to him by Caleb Peck, the owner, in 1880, who died in 1883, leaving a will, by which the premises were devised to the defendant Rebecca J. Peck for life, remainder to the defendants Alanson and Mary J. Peck; and when the sales were made by Clemens, on the 28th and 29th of May, 1885, he was occupying the premises under a continuance of the lease by the consent and agreement of the owner of the life estate only; the effect of which, is the same, as if he were in possession under a new lease made by her. We are satisfied it is only her estate in the property that can be subjected to the payment of the plaintiff’s judgment; and that the estate in remainder cannot be taken. The statute makes void the lease under which the premises were occupied when the liquors were sold, and declares that the lessor shall thereafter be considered and held to be in possession. The effect of the statute was to restore the possession of the premises in question to Rebecca J. Peck. Her life estate was not terminated. Nor can it, with propriety, be said that the owners of the estate in remainder permitted the premises to be used for the sale of liquors; for, during the continuance of the life estate, -they have no control over them. And their estate in the/ property could not be made liable by any act of the owner of the estate for life.

The judgment of the circuit court will be reversed, and judgment entered subjecting the life estate of Rebecca f. Peckt to the payment of plaintiff's judgment. As to the other defendants the judgment is affirmed.


text:
    Dugan v. Neville.
    Error to the Circuit Court of Belmont county.
   This cause was advanced and heard with the preceding one, Mullen v. Peck, and was argued by Gallagher & Woodbridge, for plaintiff in error, and James T. Tollman, for defendant in error.

The questions involved are decided by the first and third paragraphs of the syllabus in the Mullen case, and as they were determined in the court below in accordance with that decision,

The judgment is affirmed.


author: DicemAN, J.

text:
    Campbell v. Cincinnati et al.

      Street improvement — Appropriation of property — Passage of ordinance — Suspension of rule.

    1. An ordinance of a municipal corporation to condemn property for the opening and extension of a street, or to improve by grading, curbing and macadamizing a street so opened and extended, is an ordinance of a permanent nature, within the meaning of section 1694 of the Revised Statutes.
    2. The requirement in section 1694, that ordinances of a permanent nature shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule, is mandatory.
    3. Where the statutory rule was dispensed with as to several of such ordinances upon one and the same vote and call of the yeas and nays, and thereafter, on the same day, all the ordinances were put upon their passage, and voted upon without a separation or division of the question, and were finally declared passed, upon one and the same vote. Held:

    1. A separate suspension of the statutory rule as to each ordinance was requisite to the legality of its final passage.
    2. A separate vote was requisite as to each ordinance on its final passage, in order that such passage might be legal.
    (Decided June 24, 1892.)
    Error to the Superior Court of Cincinnati.

      W. M. Ampt, for plaintiff in error.
    The only objection to the improvement assessment is that the improvement ordinance was not legally passed, but the objections are the same as to both the ordinances, and they are urged on two points:
    1. In suspending the statutory rule (R. S. 1694) requiring ordinances to be read on three different days, as to several ordinances in a lump, and not separately as to each ordinance.
    2. In finally passing several ordinances in a lump, instead of doing it by a separate vote as to each ordinance.

      There appears to be no provision of our statute requiring that the vote on a suspension of the rule or on the final passage shall be taken separately, nor is there any express provision forbidding the lump voting. But it is submitted that where proceedings are being enacted by a municipality, which will result in placing liens on the property of a private citizen; and when the municipality is vested with the sole discretion of determining the necessity of the improvement; of deciding upon the time when it shall be made; and is vested with the sole and absolute power of determining upon all the details involved in an improvement proceeding, that, in such a case and under such circumstances, the citizen, as a. matter of protection, is entitled to have the unbiased, clear and distinct, judgment of the governing authority as to all the separate steps in a proceeding which will terminate in an assessment upon him and his property. We submit that he does not get this fair impartial consideration, when other matters and other improvements are acted upon and decided upon in a lump vote; that such voting gives opportunity for “log-rolling,” and enables sevéral measures, each favored only by a minority, to “combine” together and pool their votes, and thus secure the majority necessary to final and favorable action.
    The citizen may well claim that he is entitled to action upon the measures which affect him, wholly disassociated from other considerations not affecting him, and when this is denied he may well claim that he is prejudiced in his property rights. Bloom v. Xenia, 32 Ohio St., 461, 465; Cooley on Constitutional Eimitations (6 ed.), p. 168; Revised Statutes 1694; Steckert v. Bast Saginaw, 22 Mich. 104; State v. Newark, 30 N. J. E. 303.

      Horstman, Galvin, Whitaker and Van Horn, City Solicitors, for defendant in error.
    Brief of Theodore Horstman, Corporation Counsel, for defendant in error.
    It is claimed in this case that the condemnation ordinance was illegally passed for the reason that the rule (R. S. 1694,) requiring ordinances to be read on three different days, unless the rulé is dispensed with by a three-fourths vote,' was dispensed with as to this ordinance in connection with two other ordinances at the same time, or as counsel calls it, “in a lump,” and on the same day these three ordinances were respectively read the second and third time and finally passed upon one vote.
    And it is claimed that the assessment to pay the cost of the construction of this street by grading and paving is illegal, for the reason that the ordinance to improve was illegally passed, by suspending the rule with reference to this improvement ordinance together with an improvement ordinance for another street. This is the only objection to the improvement assessment in this case.
    Counsel admits that there is no provision of the statute requiring the vote oh the suspension of this rule, or on the final passage of an ordinance, to be taken separately, but insists that the meaning of section 1694 is that they shall be considered separately, and that the case of Bloom v. Xenia, 32 Ohio St., 461, sustains his claim in this regard.
    We submit that the ordinance to condemn and to improve, in this case, are not ordinances of a general and permanent nature; and we desire to call the court’s attention to the difference between section 1694 and section 1695 of 'be statutes.
    In section 1695 it is provided that “ ordinances of a general nature, or providing for improvements, shall be published in some newspaper of general circulation in the corporation,” etc.
    Clearly if this means anything it means that the legislature distinguished ordinances providing for improvements from ordinances of a general nature, or in other, words from the language of section 1694, to-wit: “Ordinances of a general or permanent nature.”
    Any member might have objected to the consideration of these ordinances together, and the ones objected to, would have been considered separately. It will be noticed too, that the Common Council complied with the rule that ordinances of the same nature only, should be considered together; in the first instance there being two condemnation ordinances passed together, and in the second, two improvement ordinances.
    While we believe that section 1694 does not apply to ordinances providing for an improvement, we insist that it was strictly followed in this case as to both ordinances, and that the rule was regularly suspended as to each of these particular ordinances within the rule laid down by the Supreme Court in the case of Bloom v. Xenia. The language of the court in that case was that the suspension must be as to the particular ordinance and not a general suspension. The rule might be suspended as to two or three particular ordinances, so that they are particularly and specifically designated. It will also be remembered that the ordinance in question in the Bloom case was a criminal ordinance, and hence the rule of the strictest construction , applied.
    It is further submitted that this provision is not a mandatory one but a directory one merely. Section 1694 is in nearly the same words as section 16 of article 2 of the constitution. And this provision has been held to be merely directory. Miller v. The State, 3 Ohio St., 475; State v. Covington, 29 Ohio St., 102.
    It seems to us that it is far fetched to claim that because two ordinances were passed by one vote without objection by any member of the legislative body, that each of them is' amenable to the objection that they contained more than one subject. They are of the same nature, and each certainly contains but one subject; and besides this provision also has been held to be directory merely. 3 Ohio St., 475; 29 Ohio St., 102. See also Cushing’s Eaw and Practice of Legislative Assemblies, sections 794 and 1484.
   DicemAN, J.

The original action was begun in the Superior Court of Cincinnati, by the plaintiff, Thomas C. Campbell, in behalf of himself and others, against the defendants, The City of Cincinnati, John Stevens, city comptroller, Fred Raine, county auditor, and John Zumstein, county treasurer, of Hamilton county. The suit was brought to enjoin two assessments, the first being to pay for property condemned to open and extend Ashland street from McMil-len street to Myrtle avenue, in the city of Cincinnati, and the second assessment to pay the cost of grading, curbing and macadamizing Ashland street, between McMillen street and Myrtle avenue. Important questions of law arising, the case was reserved to the General Term of the Superior Court, where a final decree was rendered, dismissing the petition and the amendment of the petition, except as to a claim by the plaintiffs of a two per cent, reduction and a twenty-five per cent, limitation of assessment. The plaintiffs' now seek to reverse the judgment of the Superior Court. On the authority of Caldwell v. Carthage, decided at the present term, we should hold the two assessments to be valid, and affirm the judgment of the court below, were it not that we deem invalid the ordinance for appropriating property to open and extend Ashland street, and the ordinance for grading, curbing and macadamizing th^t street.

As alleged in the amendment of the petition found by the Superior Court to be' true, the ordinance of appropriation, No. 3937, for opening and extending the street, was passed in the following manner:

“In the Board of Aldermen in said city, on April 22,1887, said ordinance, No. 3937, having been read the first time on that day, on motion the rule oí law requiring ordinances to be read on three different days was suspended as to said ordinance and also as to an ordinance to appropriate property to open and extend Eincoln avenue, and also as to an ordinance to appropriate property to widen Eastern avenue, said suspension being ordered as to all three of said ordinances without a separation or division of the question, on one vote and one roll call of yeas and nays, and by twenty-three favorable votes out of a membership of thirty members, and said order of suspension providing that the three ordinances should go to the ■ second reading and engrossment and the third reading and final passage on said day.”
“Thereupon, each of said ordinances having then been read a second time on said day and then a third time on said day, all three of them were then and there on said day voted upon without a separation or division of the question, and were finally passed on said vote on one roll call of the yeas and nays and by twenty-three favorable votes, and without any other or further suspension of said rule.
“ In the Board of Councilmen of said city, on May 6th, 1887, said ordinance, No. 8937, having been read the first time on that day, on motion said rule of law was also suspended as to said ordinance, and also as to said ordinance to open and extend Eincoln avenue, said suspension being ordered as to both said ordinances without a separation or division of the question, and on one vote and one roll-call of the yeas and nays, and by forty favorable votes out of a membership of fifty members, and said order of suspension providing that both said ordinances should go to the second reading and engrossment and the third reading and final passage on said day.
“ Thereupon, each of said ordinances having then been read a second time on said day, and then the third time on said day, both of them were then and there on said day voted upon without a separation or division of the question, and were finally passed on said vote on one roll-call of the yeas and nays, and by iorty favorable votes, and without any other or further suspension of said rule of law.”

And the ordinance, No. 4090, for the improvement of the street by grading, curbing and macadamizing, was passed by the board of aldermen, on July 18th, 1888, — having been previously passed by the board of councilmen — and as follows:

“ After having been read the first time on said day, on motion the rule of law requiring ordinances to be read on three different days was suspended as to said ordinance, and also as to an ordinance to improve Shillito street, said suspension being ordered as to both of said ordinances without a separation or division of the question, on one vote and one roll-call of yeas and nays, and by twenty-three favorable votes out of a membership of thirty members, and said order of suspension providing that both ordinances should go to the second reading and engrossment and to the third reading and final passage on said day.
“Thereupon, each of said ordinances having been read a second time on said day and then the third time on said day, both of them were then and there on said day voted upon without a separation or division pf the question, and were finally passed on said vote and on one roll-call of the yeas and nays, and by twenty-three favorable votes, and without any other or further suspension of said rules of law.”

Section 1694 of the Revised Statutes, provides that: “ By-laws, resolutions and ordinances, of a general or permanent nature, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule; and the vote on such suspension shall be taken by yeas and nays, and entered on the journal.” The first question that arises is, was the appropriation ordinance, or the improvement ordinance, for the passage of which without being read on three different days, it is claimed, the rule was suspended, an ordinance of a general or permanent nature, within the meaning of the statute.

Whether those ordinances were of a general nature, we deem it unnecessary to determine in the decision of the present case; but, in our judgment the ordinances were of a permanent nature as distinguished from such as are of a temporary character. The subject-matter of the ordinances was of a permanent nature — the same test we would apply in making the character of a law as general or local, to depend on the character of its subject-matter. Property was to be condemned for the purpose of extending a street, A new thoroughfare was to be opened for the public travel, without limit as to continuance in time. The community at large would become interested in the improvement, as a highway to be kept constantly open. And the appropriation ordinance provided, that the property condemned should be paid for by an assessment on abutting lots and lands payable in ten annual installments.

When the street was opened and extended, the improvement ordinance was designed to render it lasting and durable, by grading, curbing and macadamizing. The amount of assessment per foot front upon abutting property, and made a lien thereon, to pay the cost of the improvement would sufficiently indicate that the improvement was, not of a temporary nature, but rather one of an abiding and durable nature. A permanent way, as applied to the road-bed and superstructure of a railway, was originally so-called in England, as being the company’s finished road, in distinction from the contractor’s-temporary way.

A distinction is sometimes drawn between an ordinance and a resolution, by which, the one prescribes a permanent rule of conduct or government, while the other is of a temporary character and prescribes no permanent rule of government. The statute, however, refers both to “ resolutions, and ordinances, of a general or permanent nature.” But in Upington v. Oviatt, 24 Ohio St. 232, in which the preliminary resolution declaring the necessity of the proposed improvement was not adopted with the prescribed formalities, was not read on three different days, nor such reading dispensed with by a vote of three-fourths of the members elected, the court say: “ It was not a resolution of a permanent nature. It made no provision for the future, but simply declared an existing fact.” With such criteria of a temporary resolution, in the given instance, we would readily distinguish the ordinances under consideration as having a continuous effect and permanent nature, within the statutory meaning.

The two ordinances being therefore of a permanent nature, we may next inquire, whether they were adopted in conformity to the provisions of section 1694, of the Revised Statutes; and, if not so adopted, whether those provisions were mandatory or directory only.

It is claimed that the appropriation ordinance was illegally passed, for the reason that the rule requiring ordinances to be read on three different days unless the rule be dispensed with by a three-fourths vote, was dispensed with as to this ordinance in connection with two other appropriation ordinances, on one vote and on one call of the yeas and nays ; and that on the same day, the three ordinances were severally read the second and third time, and finally passed together on one and the same vote. And it is further claimed that the ordinance to improve Ashland street was also ille-gaily passed, for the reason that though properly passed in the board of council, the rule was suspended and the ordinance was passed in the board oí aldermen, in connection with an improvement ordinance for another street, in the same manner in which the ordinance of appropriation was passed.

The purpose of the provision that ordinances shall be read on three different days before being put upon their passage, was doubtless to prevent hasty legislation, and secure a proper degree of deliberation. If the rule requiring such reading is to be dispensed with as to several ordinances, the efficiency of the statute will best be preserved by examining the merits of each ordinance separately, and determining the expediency of considering it on three different days, by its intrinsic importance, without linking and complicating it with other ordinances of perhaps minor importance.

The statute does not in express words require the vote on dispensing with the rule, or on the final passage, to be taken separately on each ordinance, yet the obvious design of the law might be defeated if the vote were not thus taken. And, where land is to be condemned for the opening and extension of a street, and an assessment in consequence is to be levied which will become a lien on the citizen’s property; and where it rests with the municipality to determine the necessity of the improvement and all the steps and details necessary to its completion, the property ownér is entitled to the undivided judgment of the council upon an ordinance that would so materially affect his interests.

In Bloom v. Xenia, 32 Ohio St. 461, the ordinance committee of the town council of Xenia reported two ordinances, one relating to elections, and the other to prohibit ale, beer, and porter houses. The council was thus apprised of the ordinances upon which it would be called to act. The rules were thereupon suspended, and the first ordinance was passed, and without any other or further suspension of the rules, the second ordinance was passed. The court, in the opinion, say: “ Does one vote to dispense with the rules suspend them indefinitely ? Can they be thus suspended for an entire session of the council, and measures of every character passed at once ? This, we think, would be entirely too liberal.” With but slight difference, the same objections would follow, and the same mischief from crude and hurried legislation would result, where,- by the same and a single vote, the rule requiring a reading on three different days is dispensed with as to several ordinances by name.

While section 1694 of the Revised Statutes reads, “ Bylaws, resolutions, and ordinances, of a general or permanent nature, shall be fully and distinctly read on three different days,” etc., the original of that section, namely, section 98 of the Municipal Code, 66 Ohio E. 166, reads, “ All by-laws, resolutions and ordinances, of a general or permanent nature,, shall be fully and distinctly read on three different days.” But, where all the general statutes of a state are revised and consolidated, there is a strong presumption that the same construction which the statute received before revision, should be applied to the enactment in its revised form, although the language may have been changed; and the same construction will prevail as before the revision, unless the language of the new act plainly requires a change of construction, to conform to the manifest intent of the legislature. State ex rel. v. Stockley, 45 Ohio St. 304, and cases cited. The revised section, it is evident, requires no different construction from that given to the original section, in Bloom v. Xenia, supra. There, it is said: The word 'all* may mean ‘ every,’ and is to be so construed in this connection. We may therefore read the law thus : Every by-law, resolution, or ordinance must be read on three different days, unless the rule is dispensed with. The rule must therefore be dispensed with as to the particular ordinance.”

Section 1693 of the Revised Statutes provides that, “Ordinances, resolutions and by-laws shall require for their passage or adoption the concurrence of a majority of all the members elected, * * * and the vote on their passage or adoption shall be taken by yeas and nays and recorded on the journal.” Giving to this section, in connection with its original — section 97 of the municipal code — the same construction put upon section 1694, several ordinances should not be declared passed at the same time, and upon the same and a single vote of the council, but every ordinance should require for its passage a separate and distinct yea and nay vote. A contrary mode of legislation should be discouraged as opposed to public policy — as inimical to the public interests. The combination of several ordinances for passage on one and the same vote, will too often gain the support of those who disapprove of one or'more of them, but who expect in return to insure support for such of the measures as they favor. And in this connection, we may cite the appropriate words of Judge Cooley, in his work on Constitutional Eimitations: “There have been cases, as we happen to know, in which several- bills have been put on their passage together, the yeas and nays being once called for them all, though the journal is made to state falsely a separate vote on each. We need hardly say that this is a manifest violation of the constitution, which requires separate action in every case; -and that, when resorted to, it is usually for the purpose of avoiding another provision of the constitution, which seeks to preclude “log-rolling” legislation, by forbidding the incorporation of distinct measures in one and the same statute.” 6 ed, 168, note.

It is contended however that the provisions of section 1694 are to be treated as directory only; but, notwithstanding a conflict of authorities, we are not disposed to depart from the principles announced'in Bloom v. Xenia and, in accordance with the decision of that case, we think, the provisions of the section should ,be held to be imperative or mandatory. Whether a provision of the constitution as to the passage of laws is mandatory or directory to the legislature will not furnish unerring guidance in municipal legislation. The whole legislative power of the state is vested by the constitution in the General Assembly, subject to the special limitations contained in that instrument upon the exercise of that power; and if there is an apparent failure to comply with- the constitutional directions, the judicial department of the government will not forget that every reasonable intendment is to be made in favor of the proceedings of the legislature. “ It is not to be presumed that the assembly, or either house of it, has violated the constitution.” Miller & Gibson v. The State, 3 Ohio St. 475.

But municipal corporations act not by an inherent right of legislation, like the legislature of the state. They are governments of enumerated powers acting by a delegated authority. They are creatures of the statute, invested with such power and capacity only as is conferred by the statute, or passes by necessary implication from the statutory grant, and their powers must be strictly pursued. Cool. Con. Lim. 6 Ed. 227; Willard v. Killingworth, 8 Conn. 247; Ex parte Frank, 52 Cal. 606. The rule therefore as stated in numerous adjudged cases is, that the mode of procedure to be followed in the enactment of ordinances as prescribed by statute must be strictly observed. Such statutory powers constitute conditions precedent; and unless the ordinance is adopted in compliance with the conditions and directions thus prescribed, it will have no force. 17 Eng. & Am. Ency. of Raw, 238, and cases cited.

In Clark v. Crane, 5 Mich. 151, the Supreme Court laid down the rule that, “what the law requires to be done for the protection of the tax-payer is mandatory, and cannot be regarded as directory merely.” The requirement that ordinances of a general or permanent nature, shall be fully and distinctly read upon three different days, being designed as a safeguard against rash and inconsiderate legislation, and being in a great degree essential to the protection of the rights of property, it should likewise be deemed a mandatory measure intended as a security for the citizen.

It would be difficult to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. But we have reached the conclusion, that the appropriation ordinance for extending and the ordinance for improving Ashland street were not legally passed. The judgment below, we think, should be reversed so far as the petition and the amendment of the petition and the first and third causes of action were dismissed, and the cause should be remanded for rendition of judgment in favor of the plaintiffs in error, as prayed for in their pleadings.

Judgment accordingly.