author: Price, J.

text:
    McClure, Exr., etc., v. Fergus, Admr. Billingsley, Guardian, v. Hole.

      Appeals from the common pleas to" circuit court — To be taken under Sections 5227 and 5228, Revised Statutes — And not under Section 6408.

    Appeals from the court of common pleas to the circuit court are to be taken as provided for in Sections 5227 and 5228, Revised Statutes, and not as provided in Section 6408 of the same statutes. (Layer, Gdn., v. Schaber, Admr., 57 Ohio St., 234, approved.)
    (No. 11987
    Decided June 13, 1911.)
    (No. 12809
    Decided June 13, 1911.)
    Error to the Circuit Court of Franklin county.
    Error to the Circuit Court of Darke county.
    The facts in'each case are stated in the opinion.

      Messrs. Pugh & Pugh; Mr. William T. McClure; Mr. George W. Mannix, Jr., and Mr. T. A. Billingsley, for plaintiffs in error,
    cited and commented upon the following authorities:

      Layer, Gdn., v. Schaber, Admr., 57 Ohio St., 234; McCormick v. Sells Co., 76 Ohio St., 83; Brown v. Wallace, 21 C. C., 417; Willis v. Willis, 20 C. C., 664; Browne, Assignee, v. Wallace, 16 C. C., 124; Hirsh v. Kilsheimer, 12 C. C., 291; Kenton v. Board of Education, 70 Ohio St., 172; Hubble v. Renick, Admr., 1 Ohio St., 171; Elliott’s Appellate Procedure, Sec. 117; Pugh v. Corwine, 1 Dec. Re., 451; Broerman v. Townsend, 6 W. L. B., 722; Hoff v. Fisher, 26 Ohio St., 7; Hays v. Olentangy Park Co., 1 C. C., N. S., 101; Miller v. Busick, 56 Ohio St., 437; Sproat’s Exr. v. Cutler, Wright, 157; Browne, Assignee, v. Wallace, 66 Ohio St., 57; Fergus v. McClure, 12 C. C., N. S., 533; Sections 5227 and 5228, Revised Statutes.

      Mr. Arlington C. Harvey and Mr. D. W. Bowman, for defendants in error,
    cited and commented upon the following authorities:

      Layer, Gdn., v. Schaber, Admr., 57 Ohio St., 234; Woodbury & Co. v. Berry, 18 Ohio St., 456; Railway Co. v. Naylor, 73 Ohio St., 115; Slingluff v. Weaver, 66 Ohio St., 621; Thornley v. United States, 113 U. S., 310; Coal Co. v. Donley, 73 Ohio St., 298; City of Cincinnati v. Guckenberger, 60 Ohio St., 353; McCormick v. Sells Co., 76 Ohio St., 83; Browne v. Wallace, 21 C. C., 416, 66 Ohio St., 640; Willis v. Willis, 20 C. C., 664, 57 Ohio St., 668; Collins, Exr., v. Millen, 57 Ohio St., 291; Gompf v. Wolfinger, 67 Ohio St., 144; Smith v. Folsom, 80 Ohio St., 226; McMahon v. Ambach & Co., 79 Ohio St., 119; Thomas, Admx., v. Moore, 52 Ohio St., 200; Biddle, Trustee, v. Phipps, 2 C. C., 61; Kennedy v. Thompson, Assignee, 3 C. C., 448; Fergus v. McClure, 12 C. C., N. S., 87; Kenton v. Board of Education, 70 Ohio St., 172; Sections 5227, 5228 and 6408, Revised Statutes.
   Price, J.

While the main question of law involved in common to both cases, we deem it best to state their facts separately.

The first case grows out of an action commenced in the court of common pleas of Franklin county, by the defendant in error, Fergus, against the plaintiff in error, McClure. Fergus sued as ad7 ministrator of the estate of Fannie J. Hanna, deceased, and his cause of action was against McClure as executor of the will and trustee of Moses Hanna.

In the second amended petition Fergus alleged that his decedent and Moses Hanna intermarried in the year 1869, and that the estate of said Moses Hanna consisted of personal property and certain described real estate; that said Fannie J. Hanna was adjudged insane on the 9th day of June, 1897, and that she remained insane until her death in 1904; that in April, 1872, her husband, with her money purchased the real estate described in the petition, but took the title thereto in his own name, and thereafter refused to recognize the rights of said wife. The prayer of the petition was for an accounting for the money so invested in the land, as between the executor of the will, of Moses Hanna and the said administrator of Fannie J. Hanna, the wife.

The said executor answered, and admitted the alleged marriage and the subsequent insanity and death of the wife, and the purchase of. the real estate, but denied the other averments of the petition.

A second defense pleads facts to operate as a bar to- the prosecution of the action.

The case was tried to the court, who found in favor of the plaintiff, Fergus; that the'executor of the husband, Moses Hanna, should account for the sum of $2,350, also for rents collected by the husband, and these sums were declared a lien on said real estate and other equitable relief was granted.

This trial was had about December 22, 1908, and McClure, as executor of Moses Hanna, desiring to appeal from the decree to the circuit court, the following entry was placed on the journal of the court on the 24th-day of December, 1908:

“It appearing to the court that written notice has been given according to law by William T. McClure, trustee, etc., defendant in the above entitled cause, of his intention to appeal from the decision of this court to the circuit -court of Franklin county, Ohio, and that the. defendant has given bond in the probate court of Franklin county, as trustee of the estate of Moses Hanna, deceased; it is- therefore ordered by the court that no appeal bond be required of the said defendant.”

On the 11th day of February, 1909, the clerk-transmitted transcript of docket and journal entries and original papers to the circuit court.

On February 15, 1909, the appellee (Fergus) filed the following motion: “Now comes the plaintiff and moves the court to dismiss this cause on appeal for the reasons: First. The appellant, defendant below, did not give written notice of his intention to appeal said cause as is required -by law. Second. Said appeal has not been perfected as required by law.”

This motion was heard in the circuit court, and it decided that the second ground of the motion was not well taken, but sustained the motion on the first ground — that appellant did not give written notice of his intention to appeal said cause as is required by law. Having so found, the appeal was dismissed. The decision sustaining said first ground of the motion is brought here for review.

From the character of the briefs, we are of opinion that the lower court confused several provisions of the statute respecting appeals, and in passing from one provision to another, came to a conclusion which would render the practice uncertain to a very embarrassing degree.

The appeal was taken from a decree made in December, 1908, and no question is or can be made that a right of appeal existed, if properly exercised. The action was equitable in character and- was triable by the court. This right of appeal is given by Section 5226, Revised Statutes, which has been in force ■ for many years. Section 5227 has not been so fortunate, and has suffered several alterations, but when the appeal in question was attempted, it read as follows: “A party desiring to appeal his cause to the circuit court shall, within thirty days after the judgment or order is entered on the journal of the court, give an undertaking with sufficient surety to be approved by the clerk of the court or a judge thereof as hereinafter provided, and in such amount as is required or fixed by the provisions of Section 5230, Revised Statutes of Ohio.'”

Section 5228, Revised Statutes, provides that, “a party in any trust capacity, or a county treasurer in his official capacity, who has given bond in this state with sureties according to law, shall not be required to give bond and security to perfect an appeal * * * .” The balance of the section prescribes the duty of the clerk of the court, to make transcript and transmit the same with the pleadings and other papers to the circuit court.

The above sections as quoted were in operation when the appeal was taken in the present case, and McClure as executor having appealed in his trust capacity, of which there is no doubt, was not required to give bond, and to perfect the appeal it remained for the clerk to make and transmit a transcript and original papers, which was done to the satisfaction of the circuit court.

Therefore we have a plain and simple method of appeal from the common pleas to the circuit court, which has been followed in this case. The common pleas, for some reason, went beyond the requirement of Section 5227, supra, and stated in the journal entry that it appeared “that written notice has been given according to law by William T. McClure, trustee, * * * of his intention to appeal from the decision of this court,” etc.' No such notice was required by Section 5227 as it was in force at the time appeal was attempted,-and that part of the entry was superfluous.

A quotation is made from the opinion of the circuit court which indicates that it was of opinion, that, as Section 5227 did not require notice where appeal was desired by one acting in a trust capacity, some other statute should come to the rescue as to giving notice, and Section 6408, Revised Statutes, was selected for that purpose. • This section is one of'the general provisions regulating probate practice, and. when read in connection with the preceding section, contains no provision intended to modify or control Sections 5227 and 5228. This seems to be the view entertained in Layer, Guardian, v. Schaber, Admr., 57 Ohio St., 234. At the time the appeal was taken in that case, Section 5227 required notice of an intention to appeal to be entered on the records within three days after the judgment or order is entered on the journal. Such notice was not required in the instant case, but this court in above report decided that “appeals from the court of common pleas 'to the circuit court are to be taken as provided for in Sections 5227 and 5228, Revised Statutes, as to notice of appeal and not as provided in Section 6408 of said statutes.”

Browne, Assignee, v. Wallace, 66 Ohio St., 57, has been cited to sustain the judgment of dismissal, but the syllabus must be read with the facts in view. It was a case beginning in the insolvency court of Hamilton county, and therefore an appeal from its Judgment would be governed by Section 6408, Revised Statutes, and the doctrine of the syllabus relates to cases in which an appeal is desired from the probate or insolvency court to the court of common ■ pleas. In the body of the opinion it is said: “This section does not provide that the notice may be entered in the first instance in the records, as in appeals from the court of common pleas to the circuit court. Revised Statutes 5227.”

Having a plain road for appeal from the court of common pleas to the circuit court provided by Sections 5227 and 5228, Revised Statutes, there is no. reason for complicating the remedy by adopting Section 6408, and laboring to utilize all ■ of them under a pretext of harmonizing their various provisions.

•The circuit court erred in dismissing the appeal for which error its judgment is reversed and the cause is remanded to the circuit court for further proceedings according to law.

Judgment reversed.

The record in the second case discloses that Billingsley, as guardian of Edward Alexander, a weak-minded and improvident person, commenced an action in the court of common pleas of Darke county, in March, 1909, against defendant in error, in which the guardian prayed for the rescission and cancellation of a certain deed previously executed and delivered by the ward to the defendant in error. This petition was amended in May of the same year. On issues joined, the case was tried before the court of common pleas and the court found against the plaintiff and dismissed his petition. Following the judgment and as part of the entry, is the following: “And now comes the. plaintiff and gives notice of his intention as such guardian to appeal this cause to the circuit court of Darke county, Ohio, and the said T. A. Billingsley having as such guardian given bond in this state according to law, and that this appeal is in the interest of the trust, no appeal bond is required.” Transcript and original papers were duiy filed in the appellate court. At the time this appeal was attempted, Sections 5227 and 5228 were worded as quoted .in the opinion in the .preceding case, and as now found in the Revised Statutes. No notice of an intention to appeal was required by either section. The action was of an equitable character, and no doubt is expressed by counsel about it being an appealable case.

, But the circuit court and counsel for defendant in error became possessed of the view, that as Section 5227, as it then stood, did not require notice of intention to appeal to be given, it was proper practice ;to find some other section of the statute which did require notice of such intention to be given, and the' search resulted in adopting Section 6408, Revised Statutes, and on motion for that purpose, the circuit court dismissed the appeal.

What we have said in the preceding case controls the disposition of this proceeding, and need not be repeated here.

The circuit court erred in dismissing the appeal and its judgment is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Spear, C. J., Davis, Shauck, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The Williams & Thomas Company v. Preslo.

      Constitutional provisions requiring that laws — Regulating property rights — Shall operate generally — Extend to rules of evidence, when — Invalidity of Btdk Sale Act of April 30, 1908.

    1. The provisions of the constitution which require that laws regulating rights in property shall operate generally and equally extend to statutes which prescribe the presumptions and rules of evidence by which those rights are enforced.
    2. The act of April 30, 1908 (99 O’. L., 241), to render presumptively fraudulent sales in bulk of stocks of merchandise unless the seller shall, not less than seven days before the transfer, file with the recorder of the county a notice of his intention to make such sale, is repugnant to the first article of the constitution, and therefore void. (Miller v. Crawford et al., 70 Ohio St., 207, approved and followed.)
    (No. 12177
    Decided June 13, 1911.)
    Error to the Circuit Court of Mahoning county.
    The Williams & Thomas Company brought suit in the court of common pleas to set aside a sale in bulk to Preslo of a stock of merchandise, and to subject the property to the payment of the vendor’s creditors, it being alleged that the sale was made to hinder, delay and defraud creditors. The defendants denied that the sale was fraudulent. Upon the trial the cause was submitted on the following agreed statement of facts:
    “W. T. Williams and G. T. Williams are partners, trading under the firm name of the Williams & Thomas Company, and are creditors of Angelo Spina and Tony Spina, partners, formerly trading under the firm name of Tony Spina & Bro. Company.
    “Angelo Spina and Tony Spina, trading as said firm sold their entire stock of groceries in bulk, and not in the usual and regular course of business on the 5th day of April, A. D. 1909, to Mike Preslo. No written notice of such intended sale was filed, as provided by Section 6343, Revised Statutes of Ohio, by Angelo Spina or Tony Spina, or by the firm of Tony Spina & Bro. Co., with the county recorder of Mahoning county, Ohio, the county in which said stock of groceries was situated, and in which said firm did business.
    “That said sale or transfer was not made under the direction or order of a court of competent jurisdiction or by an executor, administrator, receiver, assignee for the benefit of creditors, or other officer or person, acting in the regular and proper discharge of official duty, or in the discharge of any trust imposed upon him by law.
    “Said stock of groceries are not exempt from execution.”
    No other evidence was offered by either party, the plaintiff relying on the presumption intended to be created by the following statutory provision added by way of amendment to Sections 6343 and 6344, Revised Statutes, April 30, 1908, (99 O. L., 241):
    “Any sale or transfer of any portion of a stock of goods, wares or merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller’s or transferrers business, or the sale or transfer of an entire stock in bulk shall be presumed to be made with the intent to hinder, delay or defraud creditors within the meaning of this section, unless the seller or transferrer shall, not less than seven (7) days previous to the transfer of the stock of goods sold or intended to be sold, and the payment of the money thereof, cause to be recorded in the office of the county recorder of the county in which such seller or transferrer conducts his business, and in the office of the county recorder of the county or counties in which such goods are located, a notice of his intention to make such sale or transfer, which notice shall be in writing, describing in general terms the property to be sold and all conditions of such sale and the parties thereto; excepting', however, that no such presumption shall arise because of the failure to record notice as above provided in the case of any sale or transfer made under the direction or order of a court of Competent jurisdiction, or by an executor, administrator, guardian, receiver, assignee for the benefit of creditors or other officer or person acting in the regular and proper discharge of official duty or in the discharge of any trust imposed upoñ him by law, nor in the case of any sale or transfer of any property exempt from execution.”

      In the court of common pleas- judgment was rendered for the defendants, and that judgment was*, affirmed by the circuit court.

      Messrs. McKain & Ohl; Messrs. Thompson & Hiñe and Mr. Thomas H. Hogsett, for plaintiffs in error.
    Statutes attempting to establish conclusive presumptions would, in many cases, be unconstitutional, although statutes creating prima facie presumptions in reference to the same subject-matter would be valid. 2 Wigmore on Evidence, Sec. 1354.
    It is at once apparent, also, that if the statute is construed as raising a conclusive presumption, it is much more drastic in its effect and much more open to the charge that it would operate with unliecessary and unreasonable .harshness on an innocent purchaser than if it is construed as raising merely a prima facie presumption. In the few cases in which fhws regulating bulk sales have been held unconstitutional, the question of constitutionality has almost invariably turned upon the extent and harshness of the provisions of the particular law, rather than on the general right to place some restrictions on such sales. Block v. Schwartz, 27 Utah, 387, 76 Pac. Rep., 22; Wright v. Hart, 182 N. Y., 330; Miller v. Crawford, 70 Ohio St., 207.
    The New York courts held unconstitutional a law which declared sales without certain prescribed formalities to be void, and, later, held constitutional a similar law which declared that such sales would be “presumed to be void.” Sprintz v. Saxton, 126 App. Div., 421.
    It is possible, therefore, that the present law, although constitutional if the presumption created by it is rebuttable, might be held unconstitutional if the presumption created by it is conclusive.
    It is unnecessary to burden this brief with authorities in support of the proposition that where a word in a law is susceptible of two meanings, one of which would render the law constitutional, and the other of which would render it unconstitutional, the courts will adopt that construction which will result in sustaining the law.
    The rule is stated in Bobilya v. Priddy, 68 Ohio St., 373, and the authorities are collected in Lewis’ Sutherland on Statutory Construction, Secs. 83 and 498.
    That the word “presumed” when used in this connection is susceptible of meaning a prima facie presumption, will not be controverted; that it is not merely susceptible of such meaning, but that such is its most natural and obvious meaning, .has been held in every case in which this word has been judicially construed. Hart v. Roney, 93 Md., 432; Thorpe v. Mercantile Co., 99 Minn., 22, 108 N. W. Rep., 940; Williams v. Bank, 15 Okla., 477, 82 Pac. Rep., 496; Fisher v. Herrmann, 118 Wis., 424, 95 N. W. Rep., 392.
    In placing the burden of proceeding with evidence of good faith on the parties to the sale, the matter being one clearly within their knowledge, the present statute is in harmony with an established principle of evidence that underlies many common law presumptions, as well as numerous statutory rules of evidence. This principle is, that when a particular fact lies peculiarly within the knowledge of one party, the other party should be relieved from the burden of proof of such fact, upon proof of certain preliminary facts which afford a basis for a presumption as to the existence of the main fact, in the absence of testimony from the persons having knowledge of the circumstances. Best on Evidence, Sec. 274; 1 Greenleaf on Evidence, Sec. 79; Railroad Co. v. United States, 139 U. S., 560.
    The supreme court of Ohio has several times upheld the validity of statutes prescribing rules of evidence, which cannot be distinguished, in principle, from the rule established by Section 6343, Revised Statutes. Pennsylvania Co. v. McCann, 54 Ohio St., 10.
    If we correctly understand the opinion of this court in Miller v. Crawford, the chief objection to the law there considered, and the one objection which rendered it clearly invalid, was that the formalities required were in some instances practically impossible of performance, and in all instances so numerous and difficult that the law amounted to a practical prohibition- of sales in bulk.
    It jg evident that not one of the objections to the specific provisions of the former act, nor the principle on which such objections are based, i. e., that restrictions imposed under the guise of regulation must be reasonable, is applicable to the' present act.

      The present’ act is not an amendment of' the former act, nor does it expressly repeal the former act. The former act was Section 4155-5, Revised Statutes, contained in the chapter on conveyances and incumbrances. The present act is an amendment of Section 6343, which relates to ■fraudulent conveyances. This statute was held constitutional by this court in the case of Bobilya v. Priddy, 68 Ohio St., 373.
    The present law is not invalid as class legislation, but is, in every respect, a valid and constitutional enactment.
    No argument is needed to demonstrate that the law operates equally upon all who are in the same class, i. e., upon all who are the owners of stock, goods, wares and merchandise, and upon all who are the creditors of owners of stocks of goods, wares and merchandise'. The only question is whether the possession of stocks of goods, wares and merchandise is a reasonable basis for classification. The test by which the validity of this act must be ascertained is stated in the opinion in Miller v. Crawford, 70 Ohio St., 214.
    The classification of traders and merchants 'as a distinct “class” which is properly subject to special restrictions for the protection of its creditors has been recognized by legislation for more than 300 years. Statutes giving remedies against, merchants and traders which are not available against debtors in general', have existed 'since 1570. The English bankruptcy act (Act of 13 Eliz., 1570) limited its provisions as to who might be declared bankrupt to traders, merchants and dealers in money.

      At the date of the American Revolution the-English law exempted from its operation, “every-' body except traders, brokers and merchants, in general, those dealing in money and buying and selling.” 1 Remington on Bankruptcy, 11. The United States law of 1800 was likewise limited to traders, merchants, underwriters and brokers. 1 Remington on Bankruptcy, 12. The Lower Canada bankruptcy act of 1869 applied to “traders” only. Harman v. Clarkson, 22 U. C. C. P., 291.
    Where the validity of a law passed for a lawful purpose, such as the prevention of fraud, depends upon the reasonableness of a classification made by the law, the court will presume that the facts justify the classification made by the legislature in the absence of proof that the classification is unreasonable. Marmet v. State, 45 Ohio St., 63; State, ex rel., v. Trenton, 53 Atl. Rep., 202; St. John v. New York, 201 U. S., 637.
    We are unable to see why the same presumption should not be made in favor of the reasonableness of a classification adopted by the legislature, tha£ is universally made as to the reasonableness of rates of charge prescribed by law. Cotting v. Stock Yards Co., 183 U. S., 79; State v. Hanlon, 77 Ohio St., 32.
    The Fourteenth Amendment to the Federal Constitution is, at least, as strict in its prohibition of class legislation as the provisions of the Ohio Constitution. State, ex rel., v. Ferris, 53 Ohio St., 314; State v. Gilbert, 70 Ohio St., 242;
    That the classification made by the present law is not forbidden by the United States Constitution was expressly held by the supreme court of the United States in the recent case of Lemieux v. Young, 211 U. S., 489.
    The comparison of the classification created by this act with other classifications which have been sustained as reasonable by this court, should remove all doubt as to its validity. Senior v. Ratterman, 44 Ohio St., 661; Adler v. Whitbeck, 44 Ohio St., 574.
    It seems to us that the supreme court of Illinois reasoned more convincingly in its decision in the case of Booth v. People, 186 Ill., 43, 184 U. S., 425, than in the case of Off & Co. v. Morehead, 235 Ill., 40, in which they held the bulk sales law unconstitutional. In the former case, the court held constitutional a statute' prohibiting grain option contracts, although no other option contracts were prohibited. Phillips v. State, 77 Ohio St., 214.
    The courts of Connecticut, Massachusetts, Michigan,’ Minnesota, New York, Georgia, Kentucky, Maryland, Oklahoma, Tennessee, Washington and Wisconsin have held similar laws constitutional, and the decisions in Louisiana, Pennsylvania and New Jersey have enforced similar laws. Walp v. Mooar, 76 Conn., 515; Young v. Lemieux, 79 Conn., 434; Squire & Co. v. Tellier, 185 Mass., 18, 69 N. E. Rep., 312; Spurr v. Travis, 145 Mich., 721, 108 N. W. Rep., 1090; Pierson & Hough Co. v. Noret, 154 Mich., 267, 117 N. W. Rep., 644; Thorpe v. Mercantile Co., 99 Minn., 22, 108 N. W. Rep., 940; Sprintz v. Saxton, 126 App. Div., 421; Neas v. Borches, 109 Tenn., 398, 71 S. W. Rep., 50; McDaniels v. Shoe Co., 30 Wash., 549; Fisher v. Herrmann, 118 Wis., 424, 95 N. W. Rep., 392; Jacques & Tinsley Co. v. Carstarphen Co., 131 Ga., 1, 68 S. E. Rep., 82; Grocery Co. v. Conley, 31 Ky. Law Rep., 989; Hart v. Roney, 93 Md., 432; Schmucker v. Lawler, 38 Pa. Sup. Ct., 578; State v. Artus, 110 La., 442; Dickinson v. Harbison, 72 Atl. Rep., 941; Williams v. Bank, 15 Okla., 477, 82 Pac. Rep., 496.
    We believe the only state which now holds a similar law unconstitutional is Illinois. The law held unconstitutional in Illinois imposed restrictions of the same general nature as the prior Ohio law. Off & Co. v. Morehead, 235 Ill., 40, 85 N. E. Rep., 264.
    We believe the reasoning of the court in this case is sufficiently answered by the previous portion of this brief. The decision also strikes us as somewhat inconsistent with the decision of the same court in Booth v. People, supra, and Gage v. Caraher, 17 N. E. Rep., 777; Meadowcroft v. People, 163 Ill., 56, 45 N. E. Rep., 305.

      Mr. William R. Stewart, for defendant in error.
    Under this statute, if is unimportant whether the vendor at the sale was solvent or insolvent; whether he acted in good faith or not; whether his stock was small or large; whether the sale was open or secret; whether the proceeds were to be given to his creditors or not, a purchaser could not buy, an owner could not sell, until the latter’s declared intention to sell, describing the property, and all the conditions of the sale were for seven days spread on the public records, where the. seller did business.
    Such legislation, we submit, unreasonably interferes with the rig'ht to buy and sell. merchandise. It deprives the buyer and seller, even though they be of abundant means, of purchasing, selling or enjoying property. Mugler v. Kansas, 123 U. S., 623.
    The protection of the citizen in the equal enjoyment of personal freedom and private property are secured by our constitution in terms as broad as those which vest the legislative power in the general assembly. The power to destroy or substantially impair these rights is not included in the grant of legislative power, and a law purporting to be the exercise of legislative power, whether of the power of -taxation, or of trade regulation, or of protective legislation (often called police power), or of any other legislative power, is void if in effect it is a substantial impairment of these rights secured by the constitution against the operation of every manifestation of legislative power. State v. Conlon, 65 Conn., 478; State v. Insurance Co., 73 Conn., 255; McKeon v. Railroad Co., 75 Conn., 343; State v. McMahon, 76 Conn., 97; State v. Feingold, 77 Conn., 326; Miller v. Crawford, 70 Ohio St., 207.
    The defendant in error insists the amended statute interferes not only with' the liberty and property of the vendor, as stated, but that its pro-, visions are inexcusably oppressive upon the vendee, insomuch as the alleged protection of the vendor’s creditors may, in a measure, appear publicly worthy, while, in his case there' appears no sufficient excuse or good reason for imposing a purchase prohibition that interferes and hinders him from trading with and lawfully acquiring from a retail dealer, property he could unrestrictedly acquire from any other person than a retail dealer. In re Jacobs, 98 N. Y., 98; People v. Marx, 99 N. Y., 377; People v. Gillson, 109 N. Y., 389; State v. Goodwill, 33 W. Va., 179, 6 L. R. A., 621.
    The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business or impose unusual or unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts. Lawton v. Steele, 152 U. S., 133; Colon v. Lisk, 153 N. Y., 188.
    It does not appear that said amended statute is justified as a police regulation. This statute does not assume to be a remedy against fraudulent transfers of property, or occasion inquiry as to . whether the vendor or vendee were actuated by good or bad motives. Under its provisions the bona ñdes of the parties or their solvency is not regarded, the innocent and the wicked suffer • ■equally. A statute such as this may possibly be’ justified in point of morals as a police regulation, if it be' true that all sales of merchandise in bulk by retailers are probably or presumed fraudulent, and that the parties to such sales ordinarily intend to cheat their- creditors. ’In- this regard we know, however, of common knowledge, that only in a small percentage of such sales does actual fraud exist. It is as unnecessary, therefore, as it is unjust, to put the seal of suspicion and condemnation on transfers of property that are in their essentials not probably or necessarily fraudulent. No legislative enactment 'can impute a crime under the guise of police power to any person whilst pursuing the exercise of a constitutional right. People, ex rel., v. Warden, 157 N. Y., 116; State v. Julow, 129 Mo., 163; Commonwealth v. Perry, 155 Mass., 117; Godcharles v. Wigeman, 113 Pa. St., 431; State v. Goodwill, 33 W. Va., 179; Ramsey v. People, 142 Ill., 380; State v. Tie & Timber Co., 65 L. R. A., 588; Ritchie v. People, 155 Ill., 98; People, ex rel., v. Coler, 166 N. Y., 1; State v. Dalton, 48 L. R. A., 775; People, ex rel., v. Grout, 179 N. Y., 417.
    We beg to call the attention of the court, in addition to the above, to a class of cases which appear to involve the precise principles upon which our statute is based.
    In Block v. Schwartz, 76 Pac. Rep., 22, 65 L. R. A., 308, decided by the supreme court of Utah on March 24, 1904, it was held that a statute prohibiting, under penalty, a merchant from ■ disposing of his stock of goods in bulk, without notifying his creditors, was a violation of federal constitutional safeguards, and not justified by the police power. Wynehamer v. People, 13 N. Y., 378; Wright v. Hart, 182 N. Y., 330; State v. Loomis, 115 Mo., 307; Allgeyer v. Louisiana, 165 U. S., 578.
    In Neas v. Borches, 109 Tenn., 398, 71 S. W. Rep., 50, the dissenting opinion of Mr. Justice Wilkes is clearly more satisfactory than the bare conclusions announced by the majority of the court.
    Various cases may be cited in opposition to these authorities, but on an examination it will be found that they are either based on statutes different in their effect, else that the constitutional question was not raised, or that the constitutional provisions which were considered were different from those on which we rely, or that the cases were not well considered. Such cases are McDaniels v. Shoe Co., 30 Wash., 549, 60 L. R. A., 947; Squire & Co. v. Tellier, 69 N. E. Rep., 312; Hart v. Roney, 93 Md., 432; Fisher v. Herrmann, 95 N. W. Rep., 392.
   Shauck, J.

The courts below have concluded that the statute, upon which the plaintiff relied to relieve it from the burden of proving the fraud which it had alleged, is unconstitutional. On behalf of the defendant it is insisted that that judgment is fully sustained by our decision in Miller v. Crawford, 70 Ohio St., 214. Counsel' for the plaintiff in error call attention to manifest differences between this statute and its predecessor, which was denounced as unconstitutional in the case cited. The statute denounced in that case apparently gave no consideration either to the nature of legislative power or to the limitations which are placed upon its exercise. In that case it was pointed out that in view of the intricate provisions of the act sales in compliance with it would, in many cases, be entirely impracticable, and that the statute in effect would amount to a prohibition of such sales. The terms of the present statute go no farther than to create a presumption that a sale in bulk, without giving the prescribed notice, is fraudulent, only placing upon the parties to the transaction, the burden of which vendors and purchasers are relieved in all other cases of proving a sale free from fraud. The statute does not define the character of the presumption intended by the act, whether it shall be prima facie or conclusive. If the difference is material in the present inquiry, as counsel seem to regard it, we should, in deference to the familiar doctrine that if of two permissible interpretations one would render a statute unconstitutional and the other would not, the latter should be adopted, accept the statement of plaintiffs'’ counsel as correctly defining the character and scope of the presumption intended: “The provisions of Section 6343, Revised Statutes, that certain sales 'shall be presumed to be made with intent to hinder, delay or defraud creditors/ unless notice is filed as thereinafter provided, creates a rule of evidence. It renders admissible the fact that the vendor -has failed to file notice of a sale out of the ordinary course of business, as a fact from which the intent of the parties may be inferred, and places upon the defendant the burden of proceeding with evidence óf the actual intent after proof of the lack of notice has been introduced.” The question then is, whether the guarantees of the Constitution respecting the equal rights of all to the enjoyment and use of property includes or excludes the rules of evidence and the presumptions by whose application those rights are practically preserved and enforced. This question is quite apart from that so much discusse’d in the briefs and cases cited respecting the power of the general assembly to establish rules of evidence by statutes of general and equal operation. It would seem that the distinction in this respect upon which counsel for plaintiff insist is quite inconsistent with the nature and scope of these constitutional guaranties as they are set forth in Miller v. Crawford. Without repetition of anything that is there said, it is quite convenient to quote a pertinent statement of the nature of those guaranties from a writer whose views are received with general respect: “If the legislature should undertake to provide that persons following some specified, lawful trade or employment, should not have capacity to make contracts, or to receive conveyances or to build such houses as others were allowed to erect, or in any way to make such use of their property as was permissible to others, it can scarcely be doubted that the act would transcend the due/ bounds of legislative power, even though no express constitutional provision could be pointed out with which it would come in conflict.” Cooley Const. Limitations. Although counsel point out the suggested differences between the provisions of the two statutes, they do not inform us of any difference in the constitutional view between a provision that a sale without compliance with the statute should be fraudulent absolutely, and one which upon the same condition shall be prima facie evidence that the sale is fraudulent, thus devolving upon the parties in the limited case to which the statute applies, a burden for the protection of their property rights of which all others are relieved. The pertinent effect of the constitutional provisions referred to is to ordain equality of rights in property. In contemplation of this act, where the subject of the contract of sale is the limited property described by the terms of the act, the sale is to be presumed to be fraudulent, while in all other 'cases the sale is presumed to be unaffected by fraud. Counsel have not communicated to us any view upon which we could sustain the proposition that laws can be equal which accord to one, without proof, rights which they accord to others only upon proof.

Not placing ultimate reliance upon the suggested differences between the two statutes, counsel insist that there is a valid basis for discrimination to be found in the ease with which stocks of merchandise may be purchased upon credit and then sold and transferred to the prejudice of the original vendor. Careful attention to what has been said upon this point has failed to develop in our minds the perception of any difference in this respect between sales where the subject, upon one hand, is merchandise, and on the other, flocks, herds or machinery, or the capital stock of corporations, or any others of the large list of the subjects of property. The case in this respect does not differ from Miller v. Crawford, and it is not deemed necessary to add further to what was said in that case.

Finally, we are admonished that acts of the general assembly should not be adjudged unconstitutional upon doubtful considerations. Not since The State, ex rel. Knisely, v. Jones et al., 66 Ohio St., 453, has the admonition been urged upon our attention with so much eloquence and impressiveness. Since the beginning of constitutional government, according to the American understanding of that phrase, the courts háve so admonished themselves, and the admonition has become an established rule of interpretation. It was founded upon the observation that members of the lawmaking department of the government take the same oath as do those of the judicial department to heed the provisions of the constitution, and the further observation that they were mindful of their oath. The rule continues as expressive of becoming deference to a coordinate department of the government. But nothing would be more fatal to the efficient exercise of the judicial function in constitutional government than to invoke, for the purpose of raising doubts, a rule devised for solving them. In that respect it is quite like the familiar rule respecting reasonable doubts as a test of the probative effect of evidence in criminal cases. He has been an inattentive student of the history of the state who thinks that public or private injury has resulted from a too devoted adherence to the provisions of the organic law. It seems to us that this act very plainly from its nature, takes its place among the enactments which constitute the promoted legislation of the state not suggested by comprehensive views of the rights and interests of all the people, but furthered by those who desire to obtain advantages not accorded by the general law.

Judgment affirmed.

Spear, C. J., Davis, Price, Johnson and Donahue, JJ., concur.


author: Davis, J.

text:
    The State of Ohio v. Boone.

      Act to establish Bureau of Vital Statistics — p9 O. L., 296 — Sections 14, !•/ and 21 unconstitutional.

    Sections 14, 17 and 21 of “An act to establish a Bureau of Vital Statistics and to provide for the prompt and permanent registration of all births and deaths occurring within the state of Ohio,” 99 O. L., 296, so far as they relate to a physician or midwife, in attendance up on a case of confinement, are unconstitutional and void, because they were enacted by an unnecessary, unreasonable and arbitrary exercise of the police power.
    (No. 12846
    Decided June 13, 1911.)
    Error to the Circuit Court of Hardin county.
    The facts are stated in the opinion.

      Mr. Timothy S. Hogan, attorney general; Mr. Fred H. Kirtley and Mr. James R. Stillings, prosecuting attorney, for plaintiff in error.
    An act to establish a Bureau of Vital Statistics and to provide for the prompt and permanent registration of all births, etc., is a police regulation imposing a penalty irrespective of criminal intent, and it contains no exception in favor of any person. In this particular the act under consideration is like the statutes restricting the sale of oleomargarine, which were construed by this court in the case of State v. Rippeth, 71 Ohio St., 85. Farrell v. State, 32 Ohio St., 456.
    The act to establish a Bureau of Vital Statistics and to provide for the prompt and permanent registration of all births, etc., and the penalty therein contained for failing to file a birth' certificate is not a provision for the punishment of those who fail and neglect to file a birth certificate within the statutory time, because of any supposed turpitude prompting such failure or neglect or indicated by such failure or neglect. Its purpose is indicated by its title, “An act * * * to provide for the prompt and permanent registration of all births * * * ,” in the same manner as in the case of an “act to provide against the adulteration of food and drugs.”
    The court, in the case of Commissioners v. Church, 62 Ohio St., 318, clearly defines the extent of the police power'
    The United States supreme court in the case of Bacon v. Walker, 204 U. S., 311, in passing upon an Idaho statute, goes a step farther in the extent of the police power than in the above Ohio case. Freund on Police Power, 637.
    The statutes of Missouri imposed a duty upon persons authorized to solemnize marriages to make a return of all marriages to the recorder of the county, and upon failure to do so such persons would be subject to a fine. State v. Madden, 81 Mo., 421.
    The filing of a birth certificate is required of all physicians. The law operates upon all physicians in the state of Ohio alike, and equal protection is not denied where a law operates upon all persons and upon all property similarly located. Harmon v. State, 66 Ohio St., 249; State v. Gravett, 65 Ohio St., 289; State v. Gardner, 58 Ohio St., 599; Sipe v. Murphy, 49 Ohio St., 536.
    Compensation has always been a condition of the exercise of the power of eminent domain, but never has -been a condition of the exercise of the police power. Compensation is the distinction between the two powers. Mays v. Cincinnati, 1 Ohio St., 273; Brill v. Humane Society, 4 C. C., 360; Williams v. McNeal, 7 C. C., 283; 3 Current Law, 666.
    In the case of Commonwealth v. McConnell, 76 S. W. Rep., 41, the court of appeals of Kentucky construed an act requiring physicians to report births, and for which no compensation was provided, the act being similar to the Ohio act. Robinson, Clerk, v. Hamilton, 60 Ia., 134.
    We desire to particularly call the court’s attention to tlie case of State v. Warden, 56 Conn., 216.
    The law construed by the Connecticut court required a physician to forthwith report all patients sick with- an infectious disease to the clerk of the board of health. No compensation was provided for the making of the report.

      Mr. George E. 'Crane,'for defendant in error.
    Under pretense of police regulation the state cannot be permitted to encroach upon any of the just rights of the citizen, which the constitution intended to secure against abridgement. Slaughter-House Cases, 16 Wall., 87; Lawton v. Steele, 152 U. S., 133.
    Wide as is this power, everything and anything done under state authority cannot be justified under it. The act done must fall within the legal bounds of the police power. If it exceeds those bounds and prejudices life, liberty, property, equality before the law, or privilege or immunity, it justifies federal intervention under the fourteenth amendment, because it violates that amendment. Bran-non on Fourteenth Amendment, 171; State v. Goodwill, 33 W. Va., 179, 25 Am. St. Rep., 863; Ruhlstrat v. People, 185 Ill., 133; Frost v. Chicago, 178 Ill., 250, 49 L. R. A., 657; State v. Johnson, 61 Kans., 803, 49 L. R. A., 662.
    The statutes of many states recognize the principle for which defendant in error contends. Public Health Law, Chap. 25, Gen. Laws of N. Y., Sec. 22; Burns’ Indiana Statutes, Sec. 7607; Illinois Statutes, Chap. 126a (1877), 4.
    Laws of Connecticut, Section 1861, required physicians to file certificate of birth and Section 4848 provides a fee of twenty-five cents for each such certificate.
    Revised Laws of Massachusetts, 1902, Chapter 29, Section 3, page 402, physicians and midwives shall report births. Fee for report is twenty-five cents.
    Code of Iowa of 1897, Section 2566. It shall be the duty of all assessors at the time of making assessment to obtain and report to the clerk of the district court, upon blanks adopted by the state board of health and furnished by the county auditor such registration of births and deaths as occur within their respective districts for the year ending December 31 immediately preceding.
   Davis, J.

The defendant in error was indicted for an alleged violation of an act, entitled “An act to establish a Bureau of Vital Statistics and to provide for the prompt and’permanent registration of all births and deaths occurring within the state of Ohio,” 99 Ohio Laws, 296. A demurrer to the indictment was overruled by the common pleas court and the defendant was put upon trial, found guilty and sentenced. The circuit court reversed the judgment, for error in rejecting certain testimony offered by the defendant and the state prosecutes error to reverse the judgment of the circuit court and to affirm the judgment of-the court of common pleas.

The attorney general and his associates insist that the act referred to is a constitutional exercise of legislative power and that the evidence which was rejected in the trial court was properly held to be inadmissible; while the defendant still maintains that the proffered evidence was admissible and that the act under which the indictment was framed is unconstitutional. We shall review the latter contention only.

That the general grant in the constitution of the legislative power, includes police power is conceded; and that the registration of births, deaths, marriages and the like may be included in a proper exercise of the police power is also conceded. But it is disputed that, while requiring the registration of such facts as may .naturally and readily come to the knowledge of persons present at a birth, death or marriage, the state may compel such persons to inquire for, investigate, and report upon, certain collateral matters which may be interesting and of possible value to a bureau of statistics, and that too without substantial compensation. We understand the counsel for the state to maintain the affirmative all along the line of this contention.

The police power is inherent in sovereignty; and its exercise is justified by the necessity of the occasion. Its foundation is the right and duty of the government to provide for the common welfare of the governed. It is tersely expressed in the maxim, “Salus populi suprema lex.” While, therefore, a broad discretion is given to the legislature to provide for the general welfare, it, necessarily, is not an arbitrary or unlimited discretion; for if it were beyond judicial control or review, it would amount to a practical abrogation of all constitutional guaranties of personal rights and the undefined boundaries of legislative power could be extended so as to authorize the worst and most irresponsible form of despotism, a legislative despotism conducted in the name of the people. Hence it has been held, not only in this state, but in a great number of cases both in the federal and state courts, that it is within the judicial power to declare void an unnecessary or unreasonable exercise of police power. This rule was approved and applied in Phillips v. State, 77 Ohio St., 214, “To justify the state in thus interposing its authority in behalf of the public it must appear, first, that the interests of the, public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under guise of protecting, arbitrarily interfere with private business or impose ■ unusual and unnecessary restrictions upon lawful occupations. In other words, its determination of- what is a proper exercise of the police power is not final or conclusive, but is subject to the supervision of the courts.” Lawton v. Steele, 152 U. S., 133. See also numerous cases cited in 22 Am. & Eng. Enc. Law (2 ed.), 939.

We need not-inquire whether the state may not require a physician or midwife to report to the proper authority, for registration, the fact of a birth which has come under his or her observation, first, because it is conceded that it may do so, and, second, because it obviously has some relation to the public welfare and it can not be very burdensome to comply with such regulation. But this statute goes much further. It imposes upon the physician or midwife the duty of investigating and certifying as to certain facts which would not necessarily or naturally come within the knowledge of the attending physician or midwife,, viz: whether the birth was legitimate or illegitimate, and, except in case of illegitimacy, the full name, residence, color or race, birthplace, age and occupation of the father; also the maiden name in full, residence, color or race, birthplace, age and occupation of the mother; likewise the number of this child of the mother, and the number of living children of the mother. It is further provided that no certificate shall be held to be complete and correct which does not supply all of the items of information called for therein, or satisfactorily account for their omission; and that the physician or midwife who shall neglect or refuse to. file a proper certificate of birth with the local registrar,within the time required by the act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined, etc. In short, a professional attendant at a birth is required to enter upon an inquiry as to non-professional questions, to supply information to, it may be, a non-professional official, “clothed with a little brief authority,” in relation to matters which perhaps are interesting as vital statistics, but as to which it requires more than appears in this statute or in the arguments in this case, to show that they are necessary or even closely related to the public safety, the public morals or the public welfare: an inquiry too which could be just as well and more appropriately conducted, reported upon and certified to, by the local registrar, or a township assessor, or a census taker.

The physician or midwife is compelled, under the penalties of the statute, to institute and carry out the necessary investigation and to “supply all of the information called for” without compensation. The contention is made on the part of the state that statutes which impose the duty of making such report or certificate are not unconstitutional because they do not provide for compensation to physicians. While we do not regard this point as decisive 'of the present case, yet we are not prepared to yield unqualified assent to the proposition thus broadly stated. None of the cases cited for the state in that connection appears to have been carefully considered, except State v. Warden, 56 Conn., 216. In one of them indeed, Robinson, Clerk, v. Hamilton, 60 Ia., 134, it is frankly said: “We have not been favored with an argument on behalf of the defendant, and are, therefore, not informed of the grounds upon which the statute in question was assailed in the court below and is claimed to be unconstitutional. It cannot be expected' that we shall consider arguments of which we have not heard, or that we will imagine objections and discuss them.” Besides the case does not seem to go further than the defendant in this case concedes the law to be. The Connecticut case referred to, • after a statement of the guaranties of personal liberty contained in the Constitution of the United States, contains the following language: “But these provisions place no limitation upon the power of the legislature of this state to require gratuitous service from one member of the community in the protection of the lives of all, other than that which would have been equally upon it in their absence, namely, that it shall not violate fundamental principles and purposes of the social compact.” This language should be read in the light of the facts of that case; but, assuming that it correctly states the law in its general application, there is grave reason to doubt whether it is sound law in this jurisdiction, owing do specific provisions of the Ordinance of 1787.

' The purview of that famous act of congress is expréssly “for the government of the territory of the United States northwest of the river Ohio.” The first twelve sections of the ordinance obviously provided for the temporary government of the territory until it should be divided and organized into states. Then follows something of more enduring interest. We quote.

“And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory; to provide, also, for the establishment of states, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original states, at as early periods as may be consistent with the general interest: It is hereby ordained and declared, by the-authority aforesaid, that the following articles shall be considered as articles of compact, between the original states and the people and states in the said territory, and forever remain unalterable, unless by common consent, to-wit:” Then follow the several articles of compact. We quote from only two of them. It is provided in Article II that, “No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person’s ■property, or to demand his particular services, full compensation shall be made for the same.”

Perhaps it may be said that the adoption of a constitution by the people of Ohio superseded the Ordinance of 1787, and that the constitution of Ohio contains no such provision as that which w<“ have quoted from Article II of the Ordinance of 1787. We recur again to the “articles of compact” and quote from Article V: “And whenever any of the said states shall have sixty thousand free inhabitants therein, such state shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original states, in all respects whatever: Provided, The constitution and government, so to be formed, shall be republican, and in conformity to the principles contained in these articles.” If our constitution, instead of creating a republican form of government for the state, had provided a pure democracy, a government directly by the people, and, so framed, it had been accepted by the president and congress of the United States, there might have been some reason for the claim that, in that respect, the compact which was -to “remain forever unaltered, unless by common consent” had been repealed by implication; yet even under such circumstances a conclusive presumption would not be raised that the compact had been altered, without the common consent of all the parties thereto. But if the convention which prepared our constitution had omitted from the Bill of Rights, the famous interdiction against slavery, contained in Article VI of the ordinance, would that have justified the conclusion that the compact was altered and that the existence of slavery in Ohio would be constitutional? Or, to put the question in another form, if our constitution contained nothing whatever in regard to the privilege of the writ of habeas corpus, or to trial by jury, or to proportional representation of the people in the legislature, or' to the prohibition of cruel and unusual punishments, it could not be justly inferred that the great compact had been altered and that these privileges and guaranties had been subtracted from the rights of the citizens, and were not included among the rights reserved by the people (Const, of Ohio, Art. I., Sec. 20) ; because there would have been nothing in the constitution which was inconsistent with the ordinance and the declared purpose thereof “to fix 'and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory,” and that these “articles shall be considered as articles of compact between the original states and the people and states in the said territory, and forever remain unalterable, unless by common consent.”

In Hogg v. Manufacturing Co., 5 Ohio Rep., 410, at page 416, Hitchcock, J., speaking of a clause in Article IV, of the ordinance, said, “This portion of the Ordinance of 1787, is as much obligatory upon the state of Ohio as our own constitution. In truth it is more so; for the constitution may be altered by the people of the state, while this cannot be altered without the assent both of the people of this state and of the United States through, their representatives. It is an article of compact, and, until we assume the principle that the sovereign power of the state is not bound by contract, this clause must be considered obligatory.” And in Hutchinson v. Thompson, 9 Ohio R., 52, at page 62, Grimke, J., remarked: “But when application for admission into the Union was made by the people inhabiting the eastern part of the territory, modifications in several parts of the ordinance were asked for, and they were granted by the United States as one party, to the state as the other. This seems to show that the people of Ohio have, so far, treated the articles of compact as of perpetual obligation. The alterations proposed were with a view to the immediate formation of a state constitution, and were of no importance if the states should have a right to annul the ordinance the moment it assumed that condition.”

Similar language is found in the opinion in Cochran’s Heirs v. Loring, 17 Ohio R., 409, 424-425, and the foregoing quotations remain as the unmodified expressions of this court upon this subject.

We are not unaware of various dicta which have appeared from time to time in opinions by learned justices of the supreme court of the United States, beginning with Pollard’s Lessee v. Hagan, 3 How., 212, and Permoli v. First Municipality, 3 How., 589, 616; Strader v. Graham, 10 How., 82. But it requires no acute analysis to differentiate those cases and to show that they do not go very thoroughly into the question whether the Ordinance of 1787 can be superseded otherwise than by the “common consent” of the parties to the compact as required by the terms of the ordinance, or whether such “common consent” ever has been given; and, giving the fullest effect that can be claimed from those remarks by the distinguished judges, it is obvious that they ignore the distinction between a mere act of congress which may be repealed or superseded by subsequent acts, and. a solemn and formal “compact,” in the nature of a treaty as it were, between the proprietary states and the people and states of the territory which was subsequently to be erected into several states of this Union. They ignore, moreover, the fact that the compact, on the good faith of which the original proprietors ceded this territory to the United States, expressly declared that the principles declared therein shall be the basis of “all laws, constitutions and governments which forever hereafter shall be formed in the said territory;” and at best these declarations rest on no stronger foundation than the provision of the compact itself, namely, that a state with constitutional limitations as provided, “shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original states, in all respects whatever.” See cases above cited and Escanaba Co. v. Chicago, 107 U. S., 678, 688-689; Van Brocklin v. Tennessee, 117 U. S., 151, 159; Sands v. Manistee River Improvement Co., 123 U. S., 288, 295-296; Willamette Iron Bridge Co. v. Hatch, 125 U. S., 1, 9-10. Whatever that clause may mean, it certainly does not mean that all state constitutions shall be, or are, alike, nor, that a new state erected in the Northwest Territory, shall be understood to surrender all the guaranties of the compact 'as a condition of admission as a state.

We have thus briefly .indicated the reasons for our belief, that the Great Charter of the Northwest Territory is still under, and above, and before, all laws or constitutions which have yet been made in the states which are parts of that territory; and that under its guaranties the state has not the right to draft a citizen into particular service with- ' out substantial compensation. At least, it is clear to us that the provisions of this statute which require a professional man to search out non-professional information and certify it to state authorities, is unnecessary, unreasonable and arbitrary, and is not, therefore, a valid exercise of police power. The demurrer to the indictment should have been sustained and therefore the judgment of the circuit court reversing the judgment of the court of common pleas is

Affirmed and defendant discharged.

Speak, C. J., Spiauck, Price, Johnson and Donapiue, JJ., concur.


author: Donahue, J.

text:
    Fisher v. The State of Ohio.

      Contributing to delinquency of minor female — Affidavit not bad for duplicity, when — Section 1654, General Code — Motion to quash indictment — Should not be sustained, when — Overruling of motion not final, when.

    1. An affidavit charging that F. on or about the 1st day of March, 1909, and at divers other days and times between that date and the first day of April, 1910, did unlawfully aid, abet, induce, cause, encourage and contribute to the delinquency of L. S., a female minor child, and further stating the acts, means and methods by which he contributed to such delinquency, states an offense under the provisions of Section 1654, General Code, and is not bad for duplicity.
    2. A motion to quash an indictment should not be sustained unless the defect or imperfection complained of is of such nature as to tend to the prejudice of the substantial rights of the defendant upon the merits of the case.
    3. The overruling of a motion to quash an indictment will not be regarded as a final decision of the question presented thereby, when the point is one that, if well taken, would be available on demurrer or upon motion in arrest of. judgment. (Ex Parte Bushnell, 8 Ohio St., 599, approved and followed.)
    (No. 12830
    Decided June 30, 1911.)
    Error to the Circuit Court of Clark county.
    On the second day of April, 1910, Harry Boswell filed with the probate judge of Clark county, Ohio, an affidavit charging the plaintiff in error with contributing to the delinquency of S — , a female minor child, a portion of which affidavit omitting names, reads as follows:
    “That one F — ■, late of said county, on or about the first day of March, 1909, and at divers other days and times between said day and the first day of' April, 1910, at the city of Springfield, county of Clark and state of Ohio, did unlawfully aid, abet, induce, cause, encourage and contribute to the delinquency of S — , a female minor child as aforesaid, in this, to-wit, that the said F— did then and there'unlawfully and knowingly aid, abet, procure, cause and encourage the said S— to associate with vicious and immoral persons, one of said vicious and immoral persons then and there being said F — , and the said F— did then and there have unlawful sexual intercourse with the said S — ; that the said F— did then and there unlawfully aid, abet, procure, cause, contribute and encourage the said S— -to have certain indecent, immoral and lascivious relations with the said F — -, and that the said F— did then and there unlawfully aid, abet, procure, cause, contribute and encourage the said S— to be then and there and thereby guilty of immoral conduct, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.”
    To this affidavit the plaintiff in error filed a motion to quash, which motion was overruled and a plea of not guilty entered. A jury was waived and the cause tried to the court resulting in a finding of guilty and the plaintiff in error was sentenced to pay a fine of one thousand dollars and to be imprisoned in the Xenia workhouse for one year and to -further stand committed until said fine and costs are paid. Error was prosecuted to the circuit court of Clark county, which court affirmed the judgment of the probate court, and this proceeding in error is now prosecuted in this court to reverse the judgment of the probate court and the judgment of the circuit court affirming the same.

      Mr. George C. Rawlins and Mr. Clem V. Collins, for plaintiff in error.

      Mr. 'Lawrence E. Laybourne, prosecuting attorney, for defendant in error.
   Donahue, J.

The petition in error contains numerous assignments of error, but counsel particularly urge upon the attention of this court the following:

First. The probate court erred in overruling defendant’s motion to quash.

Second. Said court erred in not according to defendant a public trial.

Third. ' Said court erred in depriving the defendant of the right to cross-examine a witness for the state.

Fourth. Said court erred in refusing to exclude a witness for state from the court room during the trial.

Fifth. Said court erred in permitting an unreasonable cross-examination of the defendant.

Sixth. Said court erred in admitting in evidence the record of the conviction of the delinquent child named in the affidavit.

The first and most important question urged upon the attention of this court by counsel for plaintiff in error is, that the probate court erred in overruling the motion to quash the affidavit. This motion to quash is of considerable length and assigns eight several reasons why this affidavit should be quashed, the first, second, third, fourth, fifth, sixth and seventh reasons all being directed to the contention’ that the affidavit does not set forth sufficient facts with sufficient certainty and definiteness, but it appears that there are enough facts clearly and definitely stated in the affidavit to charge an offense under Section 1654, General Code. It is perhaps true that some matters are stated in this affidavit in such a general way as not to permit of the admission of any evidence in relation thereto, but these allegations must be treated as mere surplusage, and if-by treating them as surplusage sufficient remains to state an offense then as to these grounds the motion to quash was properly overruled.

The eighth ground of the motion reads as follows : “Eighth. For that in said affidavit, consisting of a single count, there is duplicity, and for that more than one offense is charged against the said defendant, and for that, a multiplicity of separate and distinct offenses is charged therein against the said defendant, among others, namely, the date on or about the first day of March, 1909, which said defendant is alleged to have contriffi uted to the delinquency of the said S — -, constituting a distinct and separate offense, and the 'other days’ between said date and the first day of April, 1910, constituting each a distinct and separate offense and distinct and separate offenses.”

The question raised- by this ground of the motion to quash is not a new one in Ohio. The same principle was involved in the case of Hughes v. The State of Ohio, affirmed by this court in the 77 Ohio St., 640. The case is reported in full in the 9 C. C., N. S., at page 369. This was a prosecution under the Valentine anti-trust law and the indictment charged the defendant with being a trust combination in violation of that law from March 10, 1900, and continuing until March 9, 1903* and further charged violations of said law during that time. Section 4427-4, Revised Statutes, provides that each day of the existence of such unlawful combination constitutes a separate offense, and it was claimed in that case that by reason thereof, the indictment was bad for duplicity, and a motion to quash the same was filed by the defendant, and that motion being overruled a plea in abatement was filed, and that was followed by a demurrer, all of which were overruled by the court. The circuit court affirmed this ruling but reversed for other reasons. The principle involved and the manner of raising the question there is identical with the question raised in this case by the eighth ground of defendant’s motion to quash, except that in this case the defendant did not file any demurrer to the affidavit or any motion in arrest of judgment. It has been * held by this court that a motion to quash an indictment addresses itself to the sound discretion of the court and is never granted except in very clear cases, but the defendant is left to raise the question in a more formal way by demurrer or a -motion in arrest of judgment. It also has been held that the refusal to grant a motion to quash cannot be regarded as a final decision of the question presented thereby when the point is one which if well taken would be available on demurrer or in arrest of judgment. Ex parte Bushnell, 8 Ohio St., 599; Picket v. State, 22 Ohio St., 405.

In no case should a motion to quash be sustained unless the defect or imperfection complained of be of such nature as to tend to the prejudice of the substantial rights of the defendant upon the merits of the case. In the case at bar if the affidavit had fixed one certain positive date alleging that the crime was committed on or about that date, the state would not have been restricted in its proofs to one particular transaction, but might have proved several transactions at or about the date named and then on motion have been required to elect at the close of its evidence as to which transaction it would rely upon for conviction. Therefore, even if the contention of counsel for plaintiff in error be correct, the rights of the defendant could have been .fully protected by a motion to require the state to elect, and the overruling of the motion to quash would not be prejudicial error. The offense herein sought to be charged is, that the defendant did unlawfully contribute to the delinquency of S — , a female child. All the other averments of the affidavit set forth the manner and methods by which he contributed to her delinquency. These acts are not sought to be charged as separate crimes in this affidavit, but rather as a series of acts by which he committed the crime of contributing to the delinquency of this minor child. The crime as charged in this affidavit is in its nature a continuing one. It is predicated upon the fact that S— is a “delinquent child,” and that fact is the first one. necessary to, be proven, for it is only when she, by his aid, inducement and encouragement has become a “delinquent” within the meaning of Section 1644, General Code, that the crime of contributing to her delinquency is complete. Were it not for the provisions qf the section that each day of such contribution to such delinquency should be deemed a separate offense, then it would not be questioned but that all of his acts prior to the filing of the affidavit and reasonably proximate in time to the date named in the affidavit would be taken together as constituting the offense charg-ed. The fact that the statute provides that each day of such contribution to such delinquency shall be deemed a separate offense does not affect the construction of this statute with reference to the first offense of which the defendant may be guilty under its provisions. This defendant might have committed numerous acts that would tend to contribute to her delinquency, yet if these facts failed in their 'purpose, he would not be guilty of an offense within the prohibition of Section 1654, General Code. It is only when by his aid, inducement and encouragement she has become a delinquent within the meaning of the statute that the crime of contributing to her delinquency is complete. After that each subsequent day of contribution to her delinquency is a separate offense, whether defendant be originallv responsible for that delinquency or not.

In charging the first or original offense the affidavit may properly state the same with a continuando covering all that period in which the defendant by his acts and inducements has contributed to the final result or condition of delinquency as defined by the statute. In such case the state would be forever barred from further prosecution of the defendant for any particular act, or any particular day embraced within the time covered by the continuando and all further prosecutions' must be confined to later dates. That the state has charged this crime in this way in this particular case, is not prejudicial to the plaintiff in error, but rather to his benefit, and he cannot be heard to complain that the affidavit groups all these acts as constituting one offense, to-wit, contributing to the delinquency of this child instead of charging each of the acts as a separate contribution and consequently a separate crime.

Nor ,can the plaintiff in error be prejudiced by reason of the testimony that may be introduced in proof of the charge by reason of the numerous acts stated or the period of time covered by the allegations of the affidavit, for as heretofore observed, if the indictment had named a specific date, evidence could have been offered of different transactions reasonably approximate in time to the date named and the plaintiff in error’s only remedy would be by motion to compel the state to elect as to which one of the transactions it would rely upon for conviction.

The principle for which plaintiff in error contends is undoubtedly the correct one, and is fully established, not only by repeated decisions of this court, but by the decisions of the courts of last resort of practically all the states in the Union. He fails, however, to distinguish this case from the reported cases, but predicates his argument upon the presumption that each of the defendant’s acts set forth in this affidavit is necessarily a separate and distinct crime, while it clearly appears from the affidavit that these separate and several acts are not intended to be charged as separate and several crimes, but on the contrary the state-has charged, and the fact may well be, that it required all of these acts to complete the crime with which he is charged, to-wit, not the commission of any or all of the acts, but contributing to the delinquency of a female minor child by these acts. If the affidavit sought to charge an offense for contributing to the delinquency of this child, and a separate offense for each subsequent day he contributed to her delinquency after the first offense, then the contention of plaintiff in error would obtain' and the affidavit would be bad for duplicity, but as it now stands, the affidavit charges but <one distinct, separate and certain crime, and further specifies the manner and method of the commission of this crime by detailing the various acts" done by the defendant, which acts in the aggregate, and not separately or severally, resulted in the crime charged.

With -reference to the second assignment of error, it is only necessary to say that the question is not presented by this record. So far as appears the defendant was granted a public-trial.

The right to cross-examine a witness, or to permit the cross-examination of a witness, or to exclude a witness from the court room during a trial, are all matters within the sound discretion of the trial court, and a reviewing court will not reverse except for an abuse of that discretion. It is, therefore, sufficient to say with reference to the third, fourth and fifth assignments of error that the record does not disclose any such abuse of discretion by the trial court as would justify a reversal of this case.

The record of the conviction of the minor child upon a charge of delinquency was properly, admitted in evidence as tending to show that she was a delinquent child, without proof of which the charge must fail no matter how culpable his acts may be, for if she had not become a delinquent then in the very nature of things he could not have contributed to her delinquency. It is the initial fact to be proven, and the fact to which the evidence offered in the case ought to be first directed, and upon failure of proof of this fact the defendant would have been entitled to his discharge.

It is unnecessary to cover in detail the remaining assignments of error.

This record does not disclose any error prejudicial to the rights of the plaintiff in error, and the judgment of the circuit court is affirmed and cause remanded for execution.

Judgment affirmed. -

Spear, C. T., Davis, Shauck and Price, JJ., concur.