author: Davis, J.

text:
    Fickel et al. v. Granger.

      Alimony — Not a debt but an award of court — Founded upon obligation of husband to support wife — Cannot be subjected to payment of prior debts of wife.

    1. Alimony is not due and payable as debt, damages or penalty; but is an award by the court upon considerations of equity and public policy and is founded upon the obligation, which grows out of the marriage relation, that the husband must support his wife, which obligation continues after legal separation without her fault.

    2. Alimony cannot, either before or after payment thereof, be subjected to the payment of debts of the wife which existed prior to the allowance thereof.
    (No. 12115
    Decided November 22, 1910.)
    Error to the circuit court of Cuyahoga county.
    On October 15, 1906, the plaintiff in error, Mrs. Fickel, was indebted to the defendant in error upon a judgment of the probate court of Cuyahoga county in the sum of $1,051.37, which was subsequently reduced by a payment of $200 on October 30, 1906, leaving a balance due to the defendant in error of $851.37, with interest. On June 18, 1908, Mrs. Fickel was divorced from her husband, Jacob Fickel, and was awarded $1,200 alimony for her support and maintenance and was awarded the sole custody, care and control of the three minor children of the parties to said divorce suit. This amount of .'alimony was on the following day paid to her attorney, E. C. Schwan, one of the plaintiffs in error. On June 20 the defendant in error began this action, setting up in her petition, “that said Minnie Fickel has no real or personal property subject .to execution out of which said money can be collected, but that defendant, E. O. Schwan, is indebted to said Minnie Fickel in the amount of about $1,200 for alimony received by said Schwan for said Minnie Fickel,” and praying that said money in Schwan’s hands be subjected to the payment of her claim. It appeared on the hearing of said cause that Schwan had still in his hands $800 of the $1,200 received, having retained $250 due him for fees in the divorce case and for oth.er legal services and having paid $150 to Mrs. Fickel and on her behalf to other persons. Mrs. Fickel claimed $500 in lieu of a homestead, which was conceded to her, and the contention was therefore over the remainder of the alimony, to-wit, $300, which the plaintiff in error contended could not be subjected to the payment of the claim of defendant in error. The court of common pleas held with the plaintiff in error and dismissed the petition. Upon anneal a majority of the circuit court were of a different opinion and they ratified the payment by Schwan of the $500 to Mrs. Fickel as her statutory exemption, in lieu of a homestead, but ordered him to pay said balance of $300 to the defendant in error and rendered judgment against both plaintiffs in. error for costs. To reverse the judgment of the circuit court this petition in error is prosecuted.

      Mr. E. C. Schwan, for plaintiffs in error.
    The New York court of appeals was the first appellate court to decide this question and did so in the leading case upon this subject, the case of Romaine, Recr., v. Chauncey, 129 N. Y., 566, 14 L. R. A., 713, 26 Am. St. Rep., 544.
    This case has been often cited and quoted from and always with approbation. Audubon v. Schufeldt, 181 U. S., 575; Kingman & Co. v. Carter, 8 Kans. App., 46.
    Alimony cannot be appropriated for a debt existing prior to the decree of divorce. 2 Am. & Eng. Ency. Law (2 ed.), 117; 14 Cyc., 795; Smith on Equitable Remedies of Creditors, 280; 2 Bates' Pleading and Practice (1908), 1499; Lynde v. Lynde, 64 N. J. Eq., 736, 58 L. R. A., 471; Kempster v. Evans, 81 Wis., 247; Hackley v. Muskegon, 58 Mich., 454; Jordan v. Westerman, 62 Mich., 170.
    Other cases showing that alimony judgment and decrees are wholly sui generis, are Lemert v. Lemert, 72 Ohio St., 364; Peeke v. Fitzpatrick, 74 Ohio St., 396; State, etc., v. Cook, 66 Ohio St., 566; Noyes v. Hubbard, 64 Vt., 302; Barclay v. Barclay, 184 Ill., 375; Dunbar v. Dunbar, 190 U. S., 340, and Audubon v. Schufeldt, 181 U. S., 575, holding same doctrine as laid down in Lemert v.
      Lemert, supra; Holdship v. Patterson, 7 Watts (Pa.), 547, quoted with approval in the celebrated case of Nichols, Assignee, v. Eaton et al., 91 U. S., 716.

      Messrs. Laubscher & Kess, for defendant in error.
    The question involved is, Can money awarded as alimony be subjected for the wife’s debts after it has been actually paid over to her?
    We claim that it can, for the following reasons:
    1. “It is very clear that the original jurisdiction of equity did not include the power to decree alimony as an incident of divorce.” 3 Pom. Eq. Jur. (3 ed.), Sec. 1120.
    Whatever power the court seeks to exercise in this case must therefore be found in the statutes; and we are unable to find any provision giving the money after it is received any distinctive character or ear marks.
    It is on this ground that the supreme court of New York, in a case where life insurance paid for by premiums up to a certain amount is protected by statute against seizure, holds that after it is paid to the beneficiary it may be subjected. Crosby v. Stephan, 32 Plun, 478.
    2. To deny such right is to work a judicial amendment to our exemption laws, and in addition make the amount of exemption vary with the amount of alimony allowed, being $1,200 in this case, but perhaps $12,000 in the next.

      3. If the court may prevent subjection of money paid over as alimony, should it not also logically exercise a supervision over its expenditure by the wife herself, who may be extravagant and spend in a year what the court intended for her life support, or may be otherwise improvident though not feeble-minded? May she pay attorney’s fees for various legal services during two years, but refuse to pay money embezzled from her-ward? The claim of plaintiffs- in error leads, to absurd results, and makes the court an informal guardian, with no limit to its arbitrary powers.
    4. There is a clear analogy between alimony and pension, the purpose being the same in both.
    After payment of the pension it cannot be recalled by the government, nor its disposal qualified, limited or abridged. Kellogg v. Waite, 94 Mass. (12 Allen), 529; Fulwiler v. Infield’s Guardian, 6 C. C., 36, 52 Ohio St., 623; Jardain v. Association, 44 N. J. L., 376; Cranz v. White, 27 Kans., 319; Rozelle v. Rhoades, Exr., 116 Pa. St., 129.
    5. Again, alimony for support occupies no stronger ground that the year’s allowance to a widow, which is based ultimately -on the ground that she shall not become a public charge.
   Davis, J.

The question which is submitted to us in this case is this: Can money or property which has been awarded as alimony be subjected to pre-existing debts of the wife? It seems to be conceded that the question should be answered in the negative, except in cases where the alimony has come into the wife’s possession; but we'are of the opinion, for reasons which will be stated later, that at no time arid under no circumstances can alimony be lawfully subjected to the payment of a pre-existing debt. There is a clear distinction in reason between debts antecedent and debts subsequent to the time of the allowance and payment of alimony. The latter class may be presumed to have been made on the credit of, and with reference to, the alimony; not so the former.

Alimony is an allowance for support, which is made upon considerations of equity and public policy. It is not property of the wife recoverable as. debt, damages or. penalty. State on complaint of Cook v. Cook, 66 Ohio St., 566. It is based upon the obligation, growing out of the marriage relation, that the husband must support his wife, an' obligation which continues even after a legal separation without her fault. Being thus founded upon public policy and created in equity, it cannot be diverted from the purpose of support without public injury; and therefore the courts which create the fund should see. that it is not subjected to .the rapacity of pre-existing creditors who necessarily became such on the faith and credit of other funds. Such creditors have no claim on the support provided by the husband duririg the existence of the marriage relation. :We see no reason for allowing such a claim upon the support which he is compelled by law to make, whether with or without legal separation. Substantially the same answer was made to this question by the court of appeals of New York in Romaine v. Chauncey et al., 129 N. Y., 566; and the same doctrine was announced in Kansas in Kingman & Co. v. Carter, 8 Kan. App., 46.

We do not think that this case runs parallel with the cases involving pension money, because Section 4747 of the Revised Statutes of the United States provides that money due to a pensioner shall enure wholly to the benefit of such pensioner only while it is in course of transmission to the pensioner; and because .the pensioner’s claim is wholly created by the statute.

Judgment of circuit court reversed and judgment for plaintiffs in error.

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


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The Baltimore & Ohio Railroad Company v. Larwill.

      Sait commenced in state court — Removal to federal court — There dismissed by plaintiff without prejudice — May be re-brought in state court, when.

    Where a suit commenced in a state court has been removed on the motion of the defendant to a United States court having concurrent jurisdiction of the cause of action, and has by such court, on the application of plaintiff, been dismissed without prejudice to plaintiff’s right to bring a new action, there is no merger of the cause of action, and a new suit may be brought thereon within proper time in any court of competent jurisdiction as though no previous suit had been brought. B. & O. R. R. Co. v. Fulton, 59 Ohio St., 575, overruled.
    No. 12150
    Decided November 22, 1910.)
    Error to the Circuit Court of Wayne county.
    On July 21, 1908, the defendant in error herein commenced in the court of common pleas of Wayne an action against The Baltimore & Ohio Railroad Company, plaintiff in error herein, to recover for damages alleged to have been sustained by reason of the obstruction of the channel of a stream known as Apple Creek, by the erection of a bridge over and abutments in the said channel, thus obstructing the natural flow of water and causing it to back up and overflow plaintiff’s adjacent and contiguous lands, to his great damage. Judgment was asked for $1,999.
    The Company, appearing by motion to the jurisdiction, made it known to the court that on May 1, 1908, the plaintiff instituted an action in the same court against the Company to recover five thousand dollars for the obstruction of the channel of Apple Creek, being for the same injuries to the same land complained of in the petition herein. Whereupon, by proper pleading and bond, the Company caused said action to be removed, and by subsequently filing a complete copy of the record said cause was duly removed to the circuit court of the United States for the Northern District of Ohio, Eastern Division, which court then and thereby acquired jurisdiction of said cause, the Company being a citizen and resident of the state of Maryland and the said Larwill a citizen and resident of the state of Ohio. Thereupon, within proper time, the plaintiff below dismissed said action so removed as aforesaid, and so pending in said circuit court, at his own costs, and without prejudice to a future action.
    The said motion of the Company in the court of common pleas to dismiss the action of the plaintiff for want of jurisdiction thereof was sustained by said court and the cause thereupon dismissed. This judgment was reversed by the circuit court and the Company now here asks a reversal of the latter judgment and an affirmance of that of the common pleas.

      Messrs. Arrel, Wilson & Harrington and Messrs. Taylor & Taylor, for plaintiff in error.
    In the original action referred to, the court of common pleas and the federal circuit court both had original jurisdiction of the parties, and the cause of action. The defendant below, in the exercise of its constitutional right under the laws of the United States, by the removal of the case to the United States circuit court, vested the exclusive jurisdiction of both the subject-matter and the parties in it, so that by operation of law the court of common pleas, which had original jurisdiction in the matter, concurrent with the federal court,' absolutely lost such jurisdiction by the removal, and it could only be restored by action of the federal court, in which the exclusive jurisdiction was thereby vested. National Steamship Co. v. Tugman, 106 U. S., 118, 27 Law Ed., 87.
    The state court not only lost jurisdiction of the subject-matter of the action and the parties, but this jurisdiction could not be restored by waiver, or even by consent of the parties. Works on Courts and Their Jurisdiction, 32; Cooley Constitutional Limitations (5 ed.), 493; Wilson, Assignee, v. Swigart et al., 31 W. L. B., 353.
    • There seems to be only one way under the law whereby jurisdiction that has been terminated by removal from a state to a federal court can be restored in a state court, and that is by action of the federal court in remanding the suit, that is, the subject-matter’and cause of action and the parties to the state court. The records of the common pleas court of Wayne county show that the identical cause of action between the identical parties was removed to the federal court, and that thereby the state court lost jurisdiction, and that the federal court, so far as the record goes, still has jurisdiction of the cause of action and the parties. Insurance Co. v. Dunn, 19 Wall., 214, 22 Law Ed., 68; Steamboat General Buell v. Long, 18 Ohio St., 521; Removal Cases, 100 U. S., 457, 25 Law Ed., 593.
    It has been the settled law of this state for more than ten years that the jurisdiction of the state court, when once lost by removal to the federal court, could not be reinstated by dismissal in the federal court and refiling the action in the state court, and that if such course of procedure was adopted, that the state court was without jurisdiction. Railway Co. v. Fulton, Admr., 59 Ohio St., 575.
    This is a well considered case, and was after-wards approved in the case of Thomas v. The W. J. Gawne Co., 69 Ohio St., 561.

      Mr. A. D. Metz, -for defendant in error.
    ■ We contend the law of this case is well settled, even in Ohio, by the adjudicated cases upon this subject, and that the circuit court was right in reversing the common pleas court in sustaining the motion of the defendant below.
    We contend that the decisions in every state of the Union support the holding of the circuit court, including the recent holding by this court in our own state. The proposition of law, in this case, and which the circuit court decided in favor of Larwill, is, has the plaintiff below, Larwill, the right to enter a new suit in the common pleas court for the same cause of action, claiming damages in a less sum than two thousand dollars. Anderson v. Realty Co., 79 Ohio St., 23; Gassman v. Jarvis, 100 Fed. Rep., 146; Young v. Telephone Co., 75 S. Car., 326, 7 L. R. A., N. S., 501; Cotton Products

      Co. v. Starnes, 128 Fed. Rep., 183, and affirmed in 66 C. C. A., 673, 133 Fed. Rep., 1022; McIver v. Railroad Co., 110 Ga., 223, 65 L. R. A., 437, 36 S. E. Rep., 775; Railway Co. v. Reese, 93 Ill App., 657; Foley v. Packing Co., 119 Ia., 246; Rodman v. Railway Co., 65 Kans., 645, 59 L. R. A., 704; Railway Co. v. Fulton, Admr., 59 Ohio St., 575.
   Spear, J.

It is not doubted that the court of common pleas had jurisdiction of the original action of Larwill against the Company, nor that such jurisdiction was ousted by the removal of the case to the circuit court of the United States; so that, during the pendency of the case in the latter court, its jurisdiction was exclusive, and the state court was without power to further deal with the case. The question raised by the record, therefore, is, whether or not, after the suit brought in the state court had been removed to the United States court, and had by that court at the instance of the plaintiff been dismissed without prejudice to the plaintiff’s right to bring a new action, the plaintiff may begin a new action in a state court upon the same cause of action, though for a less sum than would entitle the defendant to again remove the case to the United States court.

The question has been ruled against such right by this court in Railroad Co. v. Fulton, 59 Ohio St., 575, opinion by Minshall, J., and in Thomas v. Gawne Co., 69 Ohio St., 561, reported without opinion. The judgment of the circuit court of Wayne county brought in review by this proceeding in error was that the right of plaintiff to bring such second action in the state court after the dismissal of the case b)^ the federal court was not controlled adversely by the removal, and hence the judgment of the circuit court of Wayne county, reversing the judgment of the common pleas of that county, followed. This court is now to determine which of these rulings respecting the second case brought by the plaintiff in the court of common pleas is the law; and this involves the question whether now this court should follow its holding in the cases above cited or should consider the .proposition anew and announce such conclusion as the court as now constituted believes to be the law, irrespective of previous holdings.

In the United States court Fulton's suit was dismissed by order of the court for non-compliance with a rule of the court, admittedly a disposition otherwise than on the merits, and equivalent to a dismissal without prejudice. The basic proposition of the opinion in the case as reported in 59th State, supra, was that the removal of the cause was a removal of all the rights and remedies plaintiff had therein against the defendant company. The argument of the learned judge is based upon two propositions, one relating to the reason of the statute, and the other a matter of practice. Much abbreviated, those propositions are:

1. The United States removal statute is a remedial one and should be liberally construed. A plaintiff in a controversy between himself and a citizen of another state may, by virtue of the statute, bring suit in a federal court, and the right of removal is given a defendant sued out of the jurisdiction of the courts of his own state. This is based upon the fact that litigation between citizens of different states will be more or less affected by local influences. Thus the spirit and policy of the statute applies as well to any renewal of the :action after it has been disposed of in the federal -court as to the period of its pendency, and that court must on principle and reason retain it for all purposes; and so it follows that the controversy remains subject to the jurisdiction of the federal court and is forever excluded from that of the state court unless remanded to it.

2. After the case- has been stricken from its docket by the federal court a state court cannot determine whether or not it should be reinstated; andj by a parity of reasoning, a state court cannot pass on the right of the plaintiff to recommence the action after it has been dismissed by the federal court. If there be any rule by which a case which has been dismissed for failure to prosecute, after the time fixed by the statute of limitations has expired, the remedy must be sought in that court, • as it is properly a step in the same case. If this were not so it would open the way to a violation of the policy of the statute, and be productive of a very inconvenient practice and much abuse. It would permit a party to dismiss his case, or permit it to be dismissed for failure to prosecute, with the purpose of recommencing it in a state court, and .thus compel the defendant to be at the trouble and expense of again causing it to be removed, om submit to the jurisdiction of the state court.

And so the judge concludes, and the holding is, that the court of eommon pleas was without jurisdiction to entertain the new suit.

. Reduced to its last analysis the second proposition advanced in the opinion is that, because of the possible contingency of an application for reinstatement to the federal court by one who has allowed the dismissal of his case for failure to prosecute, the general rule respecting the jurisdiction of state courts, a rule which, upon all other considerations would be unquestioned, is to be .overridden and destroyed, and this in view of a possibility at best exceedingly remote and improbable.

It is not improper here to say that the writer did not concur in the judgment in the Fulton case, although no dissent appears. It seemed at the time to be admittedly a close question. However, in the latter case, wherein .the conclusion in' the Fulton case is followed, he did concur; this in recognition of the practice that a rule of law once announced by • the court should be followed until, by the opinion of at least a majority of the court, such rule has been or should be changed. No such majority opinion was present when the Thorpas case was disposed of.

The opinion in the Fulton case is characterized by the usual refinement of reasoning peculiar to the learned jurist who wrote it. It is, perhaps, as able a presentation of that side of the controversy as could be made by anyone. But while it is persuasive in some of its aspects it is not, to our mind, convincing. It seems to us to rest upon an unwarranted assumption. It appeafs not to give full effect'to the distinction between the term “right of action” and the term “suit.” A cause of action is the fact or combination of facts which gives rise to a right of action, the existence of which affords a party a right to judicial interference in his behalf. A suit is the pursuit in a court of justice of the remedy to which the party, by reason of the existence of the supposed facts, believes himself to be entitled. In no way can a court take cognizance of a cause of action except by its presentation by way of a suit. The United States statutes relating to removals of cases from a state to a federal court, are reproduced in Ins. Co. v. Dunn, 19 Wall., 214, and they all speak of a suit, and the matter of removal is everywhere in that case treated as a suit. It is true that the term “cause” occurs in the federal removal statute, act of July 27, 1866. But there is no reason for confusing this term, with the term “cause of action.” That it is used as the equivalent of “suit” or “case” is too clear for serious doubt. It is true that the constitution of the United States, article III, referred to in Judge Minshall’s opinion, in treating of the extension of judicial power, does speak of controversies between citizens of different states. But the section, as shown by the context, is dealing with cases, and it is apparent that, taking the article as a whole, the term “controversies” is applied to cases in which such controversies are brought to the attention of the court, and not' to quarrels, disputes or controversies at large. So there could be no controversy of which the court could take or retain jurisdiction without a cause pending. In order to constitute a controversy to which the constitution can be applied or of which a court can take cognizance, there müst be parties present. After the dismissal of the case in the United States court there were none present in' that court. There must be pleadings; there were none. There must be process or appearance; there was neither. On the contrary, the case having been dismissed by order of the court was wholly out of the court. It became then merely a dispute at large.

Nor can we assent to the proposition that “because the state court might not order a reinstatement of a case once dismissed in the federal court, therefore the state court cannot pass upon the right of the plaintiff to recommence in that court after his case has been dismissed by the federal court.” The use of the term “recommence” here indicates some confusion of thought. Strictly speaking there is no recommencing of an action. What plaintiff undertook to do was to commence a new action. To succeed, every formality of pleading, process and service was necessary to the fullest extent and in every respect precisely as though no suit had ever been brought upon that cause of action. We cannot perceive that the matter of reinstatement is of special significance, as no one doubts that one court may not pass upon the question whether a case should be reinstated which had been dismissed by order of another court, both courts being of equal authority. Such reinstatement would not only concern the same case but would belong to the same court. In the instance, suggested by the learned judge the inquiry, while it concerns the same cause of action, relates to a new and independent suit. Where the original suit has been dismissed by the plaintiff without prejudice and by the order of the. court no court can have jurisdiction over that particular case except the court which dismissed it.. Of course, therefore, that court alone possesses the power to reinstate it upon its docket, and to then dispose of it, but it does not follow from this that another action brought by the party is the same suit although it is predicated upon the same cause of action. Nor would special inconvenience result should a plaintiff seek reinstatement of his case after dismissal by the federal court and after the commencement of a new suit by him in a state court, for in such case a plea of a cause pending in another court of competent jurisdiction upon the same cause of action would, it would seem, prove a sufficient bar. It is difficult to see that the situation would present any different considerations than those present in the ordinary case, (of which the books treat fully), of a plea of another suit pending. The jurisdiction of the federal court to consider and dispose of the case upon an application for reinstatement would not be disturbed, but that court would be left free to apply to the situation the proper rules of law and dispose- of the contentions of the parties • accordingly.

There is often force in the argument ab inconveniente and where a proposed rule will manifestly be productive of a very inconvenient practice and much abuse a court will hesitate before giving construction to a statute by which such result will be brought about. It is urged that this result would follow in the present case if the conclusion in the Fulton case should be overruled, by enabling the' party to dismiss his case in the federal court with the purpose of recommencing it in the state court,, thus entailing expense and trouble on the defendant by again causing the case to be removed, or-submit to the jurisdiction of the state court. But it is not apparent that any really prejudicial or unfair result would follow the adoption of the construction hereinbefore indicated. It is true that the policy of the removal statute on the ground of diversity of citizenship is said to rest on the belief that litigation between citizens of different states is likely to be more or less affected by local influences, and it is urged that such a policy applies as well to any renewal of the action after it has been disposed of in the federal court as to the period of its pendency. But the expense caused a defendant by plaintiff dismissing his action and commencing again is not confined to cases that have been removed. In other cases pending in a federal court that action may be taken, and while the trouble incident might be something less in the latter instance, the objection is only one of degree; it is. not one of kind. So that the policy of the statute, whatever it may be, has its limits. Had it been intended to make such policy controlling, it would seem that the statute would have been so framed as in some way to prevent, what is now permitted in case of diverse citizenship, - concurrent jurisdiction with the state courts where the amount exceeds the sum of two thousand dollars. The policy of the statute seems to be to compel persons, whatever their citizenship, who have small claims, to litigate them in the state courts. In one aspect the right of the plaintiff to begin anew in a state court is advantageous to the other party. It requires in many cases the plaintiff to voluntarily abandon a portion of his claim, in this instance more than half of it. There is, as it seems to us, no warrant for the proposition that it was the purpose of the constitution or the statutes to interfere with the jurisdiction of the state courts more than is necessary to maintain the jurisdiction of the federal courts in respect to causes properly brought in those courts or removed to them; and the institution of a new suit in a state court by a plaintiff can in no manner interfere with that jurisdiction even though it be upon a cause of action involved in a cause once pending in but dismissed from the federal court. Beyond this it should be remembered that, as stated above, over the sum of two thousand dollars the jurisdiction of the two courts is concurrent. It should also be remembered that the jurisdiction of the federal court is the same whether it be invoked by the plaintiff bringing it there, or by the defendant removing it to that court. If the removal clothed the federal court with exclusive jurisdiction of the subject-matter, so would the act of a non-resident plaintiff in bringing his action there. Then it would follow that where a nonresident plaintiff commenced and then dismissed an action in a federal court he could bring a new action only in that court. And would not the same result follow the dismissal without prejudice of any case brought in a federal court? It can hardly be said that the taking by a defendant by removal a cause to a federal court gives to that court greater or more exclusive jurisdiction over the subject-matter than if as a plaintiff he had brought' action in that court originally. From considerations of reason as well as of authority, it seems to us clear that the just rule in such case is that when a case has been dismissed by a court of the United States without prejudice, there is no merger of the cause of action, and a new suit may be brought thereon within proper time in any court of competent jurisdiction as though no previous suit had been brought. This conclusion was intimated in Anderson v. Realty Co., 79 Ohio St., 23, but the case not requiring a ruling upon it the point was not distinctly decided.

The decision of this court in the Fulton case was thought by the reporting judge to find support in a Georgia case, Cox v. Railroad, 68 Ga., 446, and the opinion largely rests upon that case. Unfortunately for the potency of that case as authority, the case of McIver v. Railroad Co., 110 Ga., 223, holds squarely to the contrary of the Ohio court, and at the same time asserts that “the Ohio court has entirely misapprehended the ruling in that case,” adding that “the only point necessary to be decided in the Cox case was whether the law contained in the section of the code cited had any application to a case removed to the federal court.” Holding, further, that the six months’ statute of Georgia “did not prevent the bar of the statute of limitations from attaching to a cause of action removed to the federal court.” The court admits that “there is some language, both in the headnote and in the opinion, which would seem to indicate that the case could not be recommenced in the state court, notwithstanding it was not barred by the statute of limitations, but such language went' further than the facts of the case justified, and what is thus said is not binding as authority.” We are not called upon to endeavor to reconcile the decisions of a sister state, but it would seem that there was some ground for misconception, if there were such, on the part of' a usually vigilant and careful Ohio judge. However, the latter case, although two of the six judges dissented, is now the law of Georgia. It is a well-stated and well-reasoned case, the opinion supported by abundant authorities, and we here give the syllabus as the deliverance of a court of high repute, and entitled to the fullest respect: “Though the plaintiff in a suit which has been properly removed from the state to a federal court having concurrent jurisdiction of the cause of action on which the suit was founded was non-suited, or voluntarily dismissed his case in the United States court, it was nevertheless his right to bring another on the same cause of action in the state court at any time within the statute of limitations applicable to such an action. The above is true, notwithstanding in the second suit the damages were laid "in an amount which would prevent another removal to the federal court.”

We have given careful attention to the argument of the learned counsel for plaintiff in error in their brief and the authorities there cited. No one of the decisions or text-books cited appears to us to reach the point of sustaining the argument, and we find ourselves unable, for reasons hereinbefore stated, to assent to the contention of counsel. Indeed a very full examination of cases, the result of an extended search, has failed to discover any which are now the law of the jurisdiction which do really support counsels’ contention. Hickman v. M. K. & T. Ry. Co., 97 Fed., 113, appears in the opinion to do so, for the judge cites the Ohio case in the 59th .State and the Cox case in the 68th Georgia, in support of a proposition to the effect that “proceedings taken by plaintiff in the state court after the removal was effected were coram non judice and absolutely void, for the obvious and conclusive reason-that the ‘controversy’ between the parties was then removed into the United States court, there to remain until finally determined.” It is difficult to see how the case with which the judge was dealing called for any such deliverance provided it is to be taken as using the word “controversy” with any meaning different from “suit,” and the term “finally determined” in any other sense than a determination which for the time being ended the case. The case was disposed of on a motion to remand from the United States court to the state court and the facts stated as well as the syllabus show that when the company sought to remove the case from the state court that court overruled the petition for removal and sought to retain the case. Proper steps were thereupon taken for removal, and the cause was removed. It was therefore pending in the United States court, and that court, finding that the grounds for removal were adequate, held that the -state court was without jurisdiction to proceed and that the defend- and had not, by further appearing and contesting the case therein, waived his right to proceed in the federal court. This ruling has been the well-settled practice of the United States courts since Ins. Co. v. Dunn, supra, and perhaps before, and resort to the decisions of state courts was in no manner necessary in its support.

The authorities cited and relied upon by the learned counsel for defendant in error, and which are given in the reporter’s note, abundantly support the counsel’s contention and the judgment of the circuit court which he asks to have affirmed.

. It is unnecessary to reproduce the citations above referred to further than has been done in preceding pages of the opinion, but we add additional authorities all of which, with more or less elaboration of statement and argument, support the conclusion hereinbefore stated. Hooper v. Railroad Co., 106 Tenn., 28; Krueger v. C. & A. Ry. Co., 84 Mo. App., 358; Adams Ex. Co. v. Schofield, 111 Ky., 832; De Witt v. C. & O. R. Co., 25 (Ky.) Ky. Law Rep., 2019, 79 S. W., 275; Stevenson’s Admr. v. I. C. R. Co., 117 Ky., 855; Nipp’s Admx. v. C. & O. Ry. Co., (Ky.) 25 Ky. Law Rep., 2335, 80 S. W., 796; C. C. C. & St. L. R. Co. v. Lawler, 94 Ill. App., 36; Swift v. Hoblawets, 10 Kan. App., 48; Fox v. Dold P. Co., 96 Mo. App., 173; Fleming v. Railroad, 128 N. Car., 80; Railroad v. Bents, 108 Tenn., 670; T. & P. Ry. Co. v. Maddox, 26 Tex. App., 297.

Since the preparation of the foregoing opinion and announcement of the decision in this case, our attention has been called to the case of Southern Ry. Co. v. Miller, 217 U. S., 209, opinion by Mr. Justice Day, in which the Supreme Court holds: “After a case properly removable and removed into the Federal court has been voluntarily dismissed without action on the merits, the case is again at large and plaintiff may begin it again in any court of competent jurisdiction, including the state court from which the first case was removed into the Circuit Court.” Fiad we known of this decision earlier much labor as well as space would-have been saved, the decision being by the highest court of the land, and giving in effect a construction to a statute of the United States, and therefore an adjudication conclusive upon this court.

The judgment of the circuit court reversing the judgment of the court of common pleas will be

Affirmed.

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


author: Crew, J.

text:
    Dykeman v. Johnson.

      Action on account — Services rendered — Petition in short form— Section 5086, Revised Statutes — Petition construed — Sufficient cause of action averred by implication — General denial — All facts necessary to cause of action in issue — Defendant also pleads contract — Terms preclude recovery — Reply does not enlarge issues — Burden of proof rests with, plaintiff.

    1. Where in an action on an account to recover for' services rendered, the petition of plaintiff is in the short form authorized by Section 5086, Revised Statutes,' such petition must be construed to contain and by implication allege, all those facts which it would otherwise be necessary to specifically aver in the statement of a sufficient cause of action, and every fact thus averred by implication is traversed and put in issue by the general denial.
    2. When by way of answer to such a petition the defendant in addition to pleading the general denial, further alleges that the services performed by the plaintiff were rendered and performed by him under .an express contract the terms of which preclude the , recovery of compensation therefor, such averments do not constitute an affirmative defense of new matter requiring a reply, and the filing of a reply thereto does not operate to change or enlarge the issues, or to shift the burden of proof. The legal effect of such an answer taken as a whole, is merely to deny the cause - of action asserted by plaintiff in his petition, and the burden of proof upon the issues thus joined rests with the plaintiff, and the court of common pleas did not err in so instructing the jury in the present case. (Sanns v. Neal, 52 Ohio St., 56, distinguished.)
    (No. 12169
    Decided November 22, 1910.)
    Error to the Circuit Court of Lorain county.
    Arland W. Johnson, the defendant in error, filed his petition in the court of common pleas of Lorain county, Ohio, against the plaintiff in error, H. A. Dykeman, to recover upon an account for services rendered and money expended. Said petition was in the words and figures following, to-wit:
    “The first full name of defendant is unknown to this plaintiff.
    “Plaintiff is an architect located and doing business in Toledo, Ohio.
    “There is due the plaintiff from the defendant the sum of fifteen hundred and forty dollars ($1,540.00) upon an account of which the following is a true copy:
    “Mr. H. A. Dykeman,
    “Elyria, Ohio, Dr.
    “To;
    “Arland W. Johnson, Toledo, Ohio. “April 23rd, 1907.
    “To one set of plans and specifications for a theater building to be erected at Lorain, Ohio, and letting contract to Superior Construction Company for the erection of the same, 3 >4% on $36,000.00......$1260.00
    ' “To letting contract with the H. J. Spieker Co. for the construction of same, the Superior Construction Co. having failed to qualify.... 120.00
    “To expenses in connection with the same, including thirty trips from • Toledo, Ohio, to Lorain, Ohio... 120.00
    “To expenses telegraphing and telephoning ................... . . . 20.00
    “Total $1540.00

      “There are no credits thereon, or off-sets thereto'. There is due the plaintiff from the defendant on said account the sum of fifteen hundred and forty dollars ($1,540.00) with interest thereon from the 23rd day of April, 1907, at six per cent. (6%) per annum, which he claims and for which he asks judgment.
    “Wherefore plaintiff asks judgment against defendant for the sum of fifteen hundred and forty dollars ($1,540.00) with interest thereon at the rate of six per cent. (6%) per annum from the 23rd day of April, 1907.”
    To this petition the defendant, H. A. Dykeman, answered as follows:"
    “Not denying plaintiff’s business and residence as alleged in his petition, defendant denies each and every other allegation contained therein.
    “By way of further answer to said plaintiff’s petition, defendant says that in the month of April, 1907, at the solicitation of said plaintiff, said plaintiff and said defendant entered into a verbal agreement looking to the promotion and erection of a theater building at Lorain, Ohio. Said defendant, at that time, was the owner of certain booking rights, which in theatrical circles is known as a-‘franchise’ for the city of Lorain, which were to expire in October, 1907, and which franchise was only valuable to said defendant in case he could procure a lease of a theater in which to commence playing shows in Lorain, prior to said date, to-wit, October 1st, 1907, and for which franchise said defendant- had expended a considerable sum of money. Said plaintiff had full knowledge of these facts and desiring as well a commission, which is a pércentage upon the cost of the building for which his plans and specifications should be furnished and including the superintendence of its erection, which commission is very greatly in excess of the actual cost of the production of such plans and specifications; entered into an agreement with the said defendant as aforesaid, to furnish plans and specifications for a theater building for Lorain, as against defendant’s franchise rights, and that they, together, would endeavor to secure the money by the organization of a company and sale of stock or by such other means as were feasible in order to build such theater.
    “It was further agreed that said building should not cost, including the architect’s commission, to exceed thirty-five thousand dollars ($35,000.00), 'rung up,’ which is to say, 'complete and ready for use.’
    “That in the event they were successful, said plaintiff was to receive a commission of five (5) per cent, upon the full cost of said building. Provided always that such commission should not raise the cost of such building above said sum of $35,000.00.
    “It was expressly agreed and understood that, in the event they were not successful in promoting and building such theater, that said plaintiff should stand the cost of preparing his plans and specifications and that said defendant should stand the loss of such expenditures as he, himself, had made in the effort to promote the venture.
    “That, notwithstanding the best efforts of both parties to the agreement, they were unsuccessful, and each took his chances with full knowledge of the circumstánces.
    “Said defendant, in the loss of the money expended for the aforesaid franchise; for an option upon certain real estate in Lorain, in connection with the aforesaid venture, and in the payment of personal expenses, including two trips to New York, sustained losses fully equal to and greater than those sustained by said plaintiff.
    “Wherefore, plaintiff prays that he may be adjudged to go hence with his costs.”
    To this answer the plaintiff filed the following reply:
    ■ “Now comes the plaintiff and for his reply to the defendant’s answer herein admits that the defendant was the owner of certain booking rights, which in theatrical circles are known as a ‘franchise,’• for the city of Lorain, and which was valuable to said defendant in case he could procure a theater ; that defendant had expended .considerable sums of money in procuring said ‘franchise;’ that plaintiff was to receive a commission of five (5) per cent, upon the full cost of the building in case plaintiff should furnish superintendence of construction, in addition to the designing, furnishing plans and specifications and letting contracts which he was required to furnish, but plaintiff avers that he was to receive only three and a half (3/4) per cent, upon the full cost of the building in case he should furnish the designing, plans, specifications and letting contracts, but did not furnish superintendence.
    . “Plaintiff denies all and singular the allegations in defendant’s answer contained not herein expressly admitted to be true and which are not admissions of the statements in plaintiff’s petition herein.”
    The cause was tried in the court of common pleas and resulted in a verdict and judgment in favor of the defendant H. A. Dykeman. Error was duly prosecuted to the circuit court of Lorain county, where the judgment of the court of common pleas was reversed on the sole ground that said court erred in charging the jury that the burden of proof under the pleadings' was upon the plaintiff instead of upon the defendant. To obtain a reversal of this judgment of the circuit court and an affirmance of the judgment of the court of common pleas, the present proceeding in error is prosecuted.

      Mr. Clayton Chapman and Mr. Q. A. Gillmore, for plaintiff in error, cited and commented upon the following authorities:

      Sanns v. Neal, 52 Ohio St., 56; List & Sons Co. v. Chase, 80 Ohio St., 42; Manufacturing Co. v. Fisher, 54 W. L. B., 422; Simmons v. Green, 35 Ohio St., 104; 9 Cyc., 735; Serenson v. Townsend, 77 Neb., 499; Fudge v. Marquell, 164 Ind., 447; 1 Ency. Pl. & Pr., 818; Mehurin v. Stone, 37 Ohio St., 49; Brewing Co. v. Schultz et al., 68 Ohio St., 407.

      Mr. Lewis W. Morgan; Messrs. Stroup & Fauver and Messrs. King, Tracy, Chapman & Welles, for defendant in. error, cited and commented upon the following authorities:

      List & Sons Co. v. Chase, 80 Ohio St., 42; Tiffin Glass Co. v. Stoehr, 54 Ohio St., 157; Sanns
      v. Neal, 52 Ohio St., 56; Beverley v. Gas Light & Coke Co., 6 A. & E., 829, 33 E. C. L., 222; Mayor v. Pyne, 3 Bing., 88; 2 Smith’s Leading Cases, 21; Dermott v. Jones, 2 Wall., 1; Williams v. Sherman, 7 Wend., 109; Baker v. Corey, 19 Pick., 496; McKee v. Vincent, 33 Minn., 508; McGraw v. Sturgeon, 29 Mich., 426; 2 Smith’s Leading Cases, 49; Clements v. Moore, 6 Wall., 299; Pomeroy on Code Remedies (4 ed.), 817; 5 Am. & Eng. Ency. Law (2 ed.), 25; Printing Co. v. Willis, 57 Minn., 93; Michalitschke Bros. v. Wells, Fargo & Co., 118 Cal., 683; Railroad Co. v. Pace, 69 Ark., 256; Insurance Co. v. Gulick, 15 C. D., 395; Pomeroy on Code Remedies (4 ed.), Section 436.
   Crew, J.

The only assignment of error which we deem it important to notice in this opinion is that relating to the charge of the court touching the question of where and with whom rested the burden of proof in this case. Upon the trial of this cause in the court of common pleas, the evidence and arguments being closed, the court among other things instructed the jury that under the pleadings the burden of proof upon the issues joined was upon the plaintiff, and refused to charge as requested by counsel for the plaintiff, “that the burden of proof was upon the defendant to establish the defense set up in his answer.” The circuit court found and held that the instruction given, which imposed upon plaintiff the burden of proof, was erroneous, and for that reason and upon that ground alone reversed the judgment of the trial court, in this we think the circuit court erred. The petition of plaintiff in this case was upon an account for services rendered and was in the short form authorized by Section 5086, Revised Statutes, which section so far as its provisions are here material reads as follows: “In an action * * * upon an account * * * it shall be sufficient for a party to set forth a copy of the account * * * with all credits * * * thereon and to state that there is due to him on such account * * * from the adverse party a specified sum which he claims with interest.” By the enactment of this statute the legislature obviously intended that the statements therein prescribed, when adopted by the pleader, should be held the equivalent of, and should imply and import all that it would otherwise be necessary to specifically allege in the statement of a sufficient cause of action. Hence, every fact thus averred by implication must be held to be traversed and put in issue by the general denial. In the present case the defendant, A. W. Johnson, by way of answer, in addition to pleading the general denial, further alleged that the services counted upon by plaintiff in his petition were services performed' by him under and pursuant to an express agreement made and entered into between plaintiff and defendant the terms of which were fully set out in said answer. After the general denial, the pleading of this contract was wholly unnecessary, for it tendered no new or separate issue and in legal effect amounted only to a denial of the averments of plaintiff’s petition; it was not a plea of new matter by way of confession and avoidance, hence no reply thereto was necessary, and the reply filed - was without legal effect to either change or enlarge the issues, or to shift the burden of proof. The attitude of the defendant under the pleadings in this case was purely defensive, and his answer in legal effect merely a denial of the cause of action asserted by plaintiff in his petition. The burden of proof was therefore on the plaintiff, and the court of common pleas properly so instructed the jury. Simmons v. Green, 35 Ohio St., 104; Mehurin v. Stone, 37 Ohio St., 49; The Koppitz-Melchers Brewing Co. v. Schultz, 68 Ohio St., 407; The List & Son Co. v. Chase, 80 Ohio St., 42; Ginn v. Dolan, 81 Ohio St., 121; 9 Cyc., 735. It would seem from the opinion of the circuit court in this case, — which opinion we now have before us, — that notwithstanding that court entertained the view that the rule as herein above announced is the correct rule, it nevertheless felt constrained to enter the judgment it did, because of the interpretation placed by it upon a former decision of this supreme court. The circuit court in its opinion says: “If the matter were one of first impression with us we should approve this rule (that the burden of proof was on the plaintiff), but we feel bound by the rule of Sanns et al. v. Neal, 52 Ohio St., 56, which we cannot distinguish in its application to the facts of that case from its equal application to the facts of this case. * * * Though logic would seem to require the plaintiff to prove as in other cases in its entirety, the contract on which his account is based, we bow reluctantly to authority and reverse the judgment for error in charging upon the burden of proof and in refusing to charge as requested.” In thus yielding deference to the supposed controlling effect of the decision in Sanns v. Neal, supra, we think the learned circuit court misconceived and incorrectly interpreted the scope of that decision. While certain of the language found in the majority opinion in that case is seemingly perhaps, at first glance, opposed to the conclusion reached by us in this case, yet, when the facts of that case are fully considered we very much doubt if the court thereby intended to decide anything which we are called upon to overrule or reverse in The present case. In that case, which was also an action on account for services rendered, the defendants in their answer after pleading the general denial, by way of further and particular defense alleged that all of the services performed by plaintiff were performed by him under a special contract and that full payment therefor according to the terms of said contract had been made to the, plaintiff, and while the rendition of the services sued for was put in issue by the general denial, performance of such services by the plaintiff and that he was entitled to compensation therefor was not in dispute, but on the trial was admitted by the evidence of defendants themselves. The performance of the services being admitted this averment of special contract and plea of payment under and pursuant thereto was more than a mere denial, it was in legal effect the assertion of an affirmative defense, the burden of maintaining'which was on the defendants. These facts we think so far differentiate and distinguish that case from the case at bar, as to leave it without controlling effect in the determination of the present case.

The judgment of the circuit court reversed and the judgment of the court of common pleas affirmed.

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


author: Summers, C. J.

text:
    State v. Robinson.

      Incest — Section 7019, Revised Statutes — Crime may be committed with or without consent of woman — Charge to jury — That consent is presumed, from act — Not prejudicial error — Instructions to jury that woman is accomplice — Unwise to convict, when— Testimony of prosecuting witness — May be found corroborated —By independent testimony, when.

    1. Under Section 7019, Revised Statutes, making it incest for persons nearer of kin by consanguinity or affinity than cousins, having knowledge of their relationship, to commit adultery or • fornication together, the crime may be committed with or without the consent of the woman, and it is not prejudicial error for the court to charge the jury that if they find beyond a reasonable doubt that an act of sexual intercourse took place that consent on the part of the female is presumed.
    2. In such case when the court has instructed the jury that the woman is an accomplice, if they find she consented to the act of sexual intercourse, and that it would be unsafe and unwise for the jury to convict the defendant upon her uncorroborated testimony, and that her testimony can be corroborated only by circumstances, or testimony from some other witness, and that a fact established beyond a reasonable doubt to be regarded as corroborative must be one which is an act of the defendant tending to show sexual intimacy probable between the defendant and the woman about the time involved, something that shows that he had undue intimacy at about that time, and circumstances in the testimony directly involving the defendant and tending to make a reasonable inference of sexual intimacy between them, it is not prejudicial error to state, in summing up, that the jury may find the testimony of the prosecuting witness corroborated if they find circumstances or testimony, independent of the testimony of the prosecuting witness, tending to suggest the probability that the defendant had sexual relations with her.
    (No. 12575
    Decided. November 22, 1910.)
    Error to the Circuit Court of Williams county.
    The facts are stated in the opinion.

      Mr. Chauncey L. Newcomer, prosecuting attorney, for plaintiff in error.
    Plaintiff in error contends that it is not necessary for the state to prove that the woman consented, that in a prosecution of the man for incest, it is immaterial whether the woman consented or did not consent. Even though the woman had resisted to her uttermost, many courts hold that the act is incest; that the defendant may be convicted of incest though he gains his ends by such force as would render him guilty of rape. Straub v. State, 17 C. D., 50; Smith v. State, 108 Ala., 1, 19 So. Rep., 306; Whittaker v. Commonwealth, 95 Ky., 632, 27 S. W. Rep., 83; State v. Hurd, 70 N. W. Rep., 613; People v. Barnes, 9 Pac. Rep., 532; Norton v. State, 6 N. E. Rep., 126; Porath v. State, 63 N. W. Rep., 1061; People v. Gleason, 33 Pac. Rep., 1111; State v. Nugent, 20 Wash., 522, 56 Pac. Rhp., 25; State v. Aker, 103- Pac. Rep., 420; State v. Winslow, 85 Pac. Rep., 433 ; McCas

      kill v. State, 45 So. Rep., 843; State v. Freddy, 41 So. Rep., 436; 2 Brickwood Sackett Instructions, Section 2803; 22 Cyc., 47; People v. Kaiser, 119 Cal., 456, 51 Pac. Rep., 702; Schwarts v. State, 91 N. W. Rep., 190; David v. People, 204 Ill., 479, 68 N. E. Rep., 540; State v. Rennick, 127 Ia., 294, 103 N. W. Rep., 159.
    Many of the courts in states having statutes similar to the statute in Ohio, hold that -the consent of the woman is not necessary. McCaskill v. State, 45 So. Rep., 843; State v. Freddy, 41 So. Rep., 436; People v. Stratton 141 Cal., 604, 75 Pac. Rep., 166.
    There is no rule of law in Ohio preventing a jury from convicting in a felony prosecution upon the uncorroborated testimony of an accomplice. Straub v. State, 27 C. C., 50.
    This was a prosecution for incest. Numerous cases hold that the conviction may be had on the uncorroborated testimony of the woman. State v. Perry, 105 N. W. Rep., 507; State v. Kouhns, 103 Ia., 720, 73 N. W. Rep., 353; State v. Aker, 103 Pac. Rep., 420.

      Messrs. Bowersox & Peck', for defendant in error.
    . It is contended by the defense that if the act had been committed, both parties were of the age of consent, each a party to the crime, and accomplices, and to sustain a conviction it is incumbent upon the state to prove, not presume, consent and participation by both parties. Ohio Crim. Law & Prac. (Laning), 527.

      It cannot be' the law that an essential element of the crime charged in the indictment can be presumed against the defendant. If such presumption obtains, then the state in a most important criminal trial, if unable to make proof upon essential elements of the charge, may be relieved from proving the same and the court might charge the jury that such essential elements would be presumed. Noble v. State, 22 Ohio St., 541.
   Summers, C. J.

The defendant, John Robinson, was convicted of the crime of incest with his sister-in-law. The circuit court reversed for error in the charge of the court. The court in charging the jury assumed that it would be the duty of the jury to acquit the defendant if the proof showed the defendant guilty of rape, and instructed the jury to the effect that if the act of sexual intercourse was proven beyond a reasonable doubt, consent on the part of the female would be presumed unless it was proven that such force was used as made the defendant guilty of rape.

Section 7019, Revised Statutes, defines incest as follows: “Persons nearer of kin by consanguinity or affinity than cousins, having knowledge of their relationship, who commit adultery or fornication together, shall be imprisoned in the penitentiary not more than ten years nor less than one year.”

In some states it is held that to constitute the crime of incest the consent of both parties is essential, that it is a joint offense, and that both parties must be guilty. This conclusion is based upon the use of the words “with each other,” “together,” or similar words in defining the crime. But in the great majority of states it is'held that the consent of both parties is not essential and that a defendant may be convicted of incest though he use such force as makes it rape. We think the better reason is with the majority. The essence of the crimes of fornication, adultery, incest and rape, is unlawful sexual intercourse. In fornication it is unlawful because the marriage relation does not exist between the parties, in adultery because the offender is married to another, in incest because the parties are too near of kin. The act is made criminal because of the status of the parties, or of the force used to accomplish it. The act can not be accomplished by one person, hence the use of the words “with each other,” or as in our 'statute “together,” and the offense is committed when the act is accomplished between persons within the prescribed status, by the party who knowing it participated in the act whether the other consented or not. As it is said in People v. Stratton, 141 Cal., 604: “Where both the circumstances of force and consanguinity are present, the object of the statute being to prohibit by punishment such sexual intercourse, it is not less incest because the element of rape is added.” If a joint offense was intended so that the guilt of both parties is essential, then a joint conviction should be required; and in the present case, if consent on the part of the woman had been proven, she being unmarried, and the act being adultery on the part of the defendant and fornication on her part, could it not then be contended that they did not commit either adultery or fornication “together”? The question whether consent is an essential ingredient of the crime was not presented in the case of Noble v. The State of Ohio, 22 Ohio St., 541.

The cases are collected in a note in 8 Am. & Eng. Ann. Cases, 908.

Consent on the part of the woman not being essential to the defendant’s guilt, it is evident that the defendant was not prejudiced by the instruction of the court that consent was presumed.

The circuit court found that the trial judge also erred in his charge on the subject of corroborative evidence. The judge charged to the effect that if the jury found that the woman had not resisted to the uttermost, so that the defendant would not be guilty of the crime of rape, if they found that the act of intercourse had been accomplished, that consent on her part would be presumed, and in that event she would be an accomplice, and that it would be unsafe for the jury to convict the defendant upon her uncorroborated testimony. The court then said: “Now what is corroboration? Corroboration is some fact established in the testimony, found by the jury which tends to prove the truth of the testimony of the accomplice in some material degree and pointing directly to the defendant, and you will observe that corroboration must come from some other witness than the witness Nellie Peppers, and in this case to be specific, a fact established beyond a reasonable doubt in this case to be regarded as corroborative must be one which is an act of the defendant tending to show sexual intimacy probable between the defendant and the girl about the time involved, some-, thing that shows he had undue intimacy at about that time, and circumstances in the testimony directly. involving the ' defendant and tending to make a reasonable inference of sexual intimacy between these persons. A corroborative fact must be something involving the defendant and also pointing to sexual intimacy at the time involved between the persons in this case.” The court then gave further instructions upon other matters, and in concluding his charge said: “It is your privilege to look to all the circumstances of the case independent of the testimony of Nellie Peppers, and if you find in these circumstances some things established beyond a reasonable doubt which point to the defendant and involve him in an odor of this kind of case, tending to suggest the probability that he had sexual relations with the witness at or about the time relied upon by the state you may consider such facts so established as corroborative of the testimony of the witness Nellie Peppers.” The giving of this last instruction, the circuit court found to be prejudicial error. The court does not point out in what particular the' instruction was erroneous, other than to say that it is not an accurate statement of what will amount to corroborative evidence.

As a matter of common law, in the absence of a statute, a jury may convict of a felony upon the uncorroborated testimony of an accomplice, but the judge, in his discretion, advises the' jury not to do so upon the testimony of an accomplice alone without corroboration. Such has been held to be the law in this state. Allen. v. The State of Ohio, 10 Ohio St., 287. At .common law the judge was not bound to give such an instruction, and his failure to do so was not reversible error. The jury might disregard his counsel and convict without corroboration, the question of the existence of corroboration and its sufficiency being for the jury. Wigmore on Evidence, Section 2056. But in many of the states it is now provided by statute that convictions shall not be had upon the uncorroborated testimony of an accomplice, and where there is no statute it probably would be held reversible error to refuse so to instruct the jury. So-that it becomes necessary for the trial court not only to "instruct the jury not to convict upon the uncorroborated testimony of an accomplice, but also to aid them in determining whether there is corroboration. The effect of the evidence is for the jury (Noland v. State, 19 Ohio, 131), but whether there is any evidence direct or circumstantial, is a question of law. Commonwealth v. Larrabee and Another, 99 Mass., 413. It is not necessary that the crime charged be proven independently of the testimony of the accomplice, or that the testimony of the accomplice be corroborated in every particular in order that it may be said to be corroborated, but only that there be circumstantial evidence, or testimony of some witness other than the accomplice, tending to connect the defendant with the crime charged and to prove some of the material facts testified.to by the accomplice. In Cunningham v. The State, 73 Ala., 51, it is held: “Under the statute making the seduction of" an unmarried woman under a promise of marriage, etc., a felony, and declaring that no conviction shall be had on the ‘uncorroborated testimony of the female upon which the seduction is charged/ it is not necessary that every fact testified to by the woman should also be testified to by some other witness; but all the requirements of the statute are met, when the corroboration is of some matter material to the guilt of the accused, of some matter not merely formal, indifferent or harmless in its nature, the effect of which is to convince the jury that the corroborated witness has sworn truly; and, if under this rule the jury are convinced of the defendant’s guilt beyond a reasonable doubt, they are authorized and required to convict. Hence, on the trial of a defendant indicted for seduction under the statute, the prosecutrix having testified to her seduction by the defendant under a promise of marriage, and she being corroborated as to the promise of marriage, a charge, given at the request of the prosecuting attorney, when construed in reference to the evidence, is free from error, which instructs the jury, that 'the corroboration mentioned in the statute does not mean that every fact testified to by the woman should be testified to by some other witness, but only that some other witness shall testify to facts and circumstances that convince you of the truth of the woman’s testimony beyond reasonable doubt.’ ” In the present case the judge correctly charged the jury that the corroboration must come from some witness other than the prosecutrix and tend to prove the truth of the testimony of the accomplice in some material matter, and tend to connect the defendant with the crime charged. That part of the charge that the circuit court found prejudicial to the defendant was said by the judge merely by way of reference to what had been fully charged and could not have been misunderstood by the jury or be prejudicial to the defendant. The charge was to the effect that if the defendant did not rape the prosecuting witness she would be presumed to have consented and that the defendant could not be convicted upon her uncorroborated testimony. This was prejudicial to the state. If the jury believed her story she did not consent, and so not being an accomplice, the jury might have convicted upon her uncorroborated testimony.

There was evidence tending to corroborate the prosecutrix. First, it was shown that there was opportunity for her and the defendant to have sexual intercourse together; second, that the defendant had-kissed and embraced her, and so had inclination for such intercourse with her; third, that she had had sexual intercourse with some one, for she had given birth to a child; and fourth, the want of opportunity or the absence of a showing of opportunity to have had such intercourse with any one other than the defendant. There are many cases to the effect that evidence of that character is corroborative.

Counsel for defendant in error contend that there were other errors than those assigned by the circuit court for which the judgment of the trial court should be reversed. We have given the record careful consideration and find no prejudicial error specifically pointed out by counsel. The judgment of the circuit court is reversed, and the judgment of the court of common pleas is affirmed.

Judgment reversed.

Crew, Spear, Davis and Shauci-c,' JJ.,' concur.


author: Price, J.

text:
    Scheu v. The State of Ohio.

      Sale of intoxicating liquors by manufacturer — In quantities of one gallon or more — Unlawful in “dry” county — Act of March 5, 1908 (99 O. L., 35) — Construction of act — Section 4364-16, Revised Statutes — Dow-Aikin tax law — Regulation of liquor traffic.

    1. From and after thirty days from the time a majority of the electors of a county have legally voted in favor of prohibiting the sale of intoxicating liquors as a beverage within the limits of such county, as is authorized by the provisions of “An act further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in counties,” passed March 5, 1908 (99 O. L., 35), it is unlawful for any person, personally, or by agent, in said county, to sell, furnish or give away intoxicating liquors to be used as a beverage, except as permitted by section three (3) of said act; and the prohibition under said act extends to and includes the sale, furnishing or giving away of intoxicating liquors in the county at the manufactory by the manufacturer, or by his agent, to be used as a beverage, although the sale be “in quantities of one gallon or more at any one time.”
    2. In construing the provisions of said act, the court is not authorized to interpolate! as a part thereof to affect the meaning and application of said act, the exceptions contained in section 4364-16, Revised Statutes (Bates'), known otherwise as section eight (8) of the Dow-Aikin tax law.
    (No. 11947
    Decided December 20, 1910.)
    Error to the Circuit Court of Tuscarawas county.
    At the January term of the court of common pleas of Tuscarawas county, for the year 1909, the grand of the county presented to the court an indictment against plaintiff in error, charging him with having sold to George Kuemerly intoxicating liquors, to-wit, beer, to be used as a beverage. The sale is alleged to have been made in said Tuscarawas county on the 24th day of December, A. D. 1908, which sale was then and there prohibited and unlawful.
    In a second count the same person was charged with having unlawfully furnished and given to said Kuemerly intoxicating liquors, to-wit, beer, on said 24th day of December, 1908, in the said county, the said furnishing and giving not being done and made in the private dwelling of the said Walter Scheu.
    The court overruled a demurrer to the indictment, and a plea of not guilty was made and entered, and in due time the issue, was tried to a jury.
    After the introduction of the evidence was completed, the accused asked the court to instruct the jury as follows:
    “The court instructs and charges the jury that if'you find from the evidence that the Tuscarawas Valley Brewing Company is a corporation incorporated under the laws of Ohio, that said company is the manufacturer of intoxicating liquor, to-wit, beer — that said company manufactures said beer at its brewery located in Canal Dover in said county of Tuscarawas, that said county had adopted local option under the Rose law,- — -that said defendant, Walter H. Scheu, was the manager of said company, and the agent of said company at the time and place of said sale as testified to by said Kuermerly, and that said manufacturer, said company by said'Walter H. Scheu, its agent, sold intoxicating liquors, to-wit, beer, by said George Kuemerly at the said manufactory, the brewery of said company, and in quantity of a gallon or more, then I say to you that the said defendant, Walter H. Scheu, would not be guilty of either of the counts in said indictment, and your verdict should be not guilty, as he stands charged in said indictment.” Also: “Under the laws of Ohio, the manufacturer of' beer would have the legal right to sell beer to the said George Kuemerly in quantities of not less than one gallon at the manufactory, and if you find from the evidence that the beer alleged to have been sold to the said George Kuemerly was beer owned and manufactured by the Tuscarawas Valley Brewing company, and was sold to him by the said brewing company through the said defendant as its agent, in quantities of not less than one gallon, , at the manufactory, then your verdict should be not guilty, as the defendant, Walter H. Scheu, stands charged in said indictment.”
    The court refused to give either of the said charges, to which Scheu excepted. He also asked the court to charge that the county local option law, known as the Rose law, is unconstitutional and void. This was also refused.
    The defendant was found guilty by the jury.
    A motion for new trial was overruled and the accused was sentenced to pay a fine of two hundred dollars and costs of prosecution. On leave granted for that purpose, a petition in error was filed in the circuit court to review the judgment of the common pleas. The circuit court affirmed the judgment, and error is prosecuted here to reverse both courts.
    Other facts are stated in the opinion.

      Mr. J. F. Greene; Mr. J. D.. T. Bold and Mr. A. D. Metz, for plaintiff in error.

      Mr. D. R. Wilkin, prosecuting attorney, for defendant in error.
   Price, J.

We are not troubled in this case with any controversy or doubt about the facts. They are few and very clear, the defendant himself having taken the witness stand apparently to remove all question as to his attitude in reference to the sale of the beer at the time and place mentioned in the indictment. He was the manager of the Tuscarawas Valley Brewing company, located in Canal Dover, and while he did not personally make the sale to Kuemerly, it was made by one Murphy, on the premises and under defendant's authority, who by his own testimony assumed all responsibility for making the sale as it was' made. The transaction occurred several months after the electors of the county, at an election held under the county local option law, by a considerable majority had voted in favor of prohibiting the sale of intoxicating liquors within the county.

The purchaser at the sale referred to says that he bought at the brewery a case, consisting of two dozen pint bottles of beer — bought it to drink and took it home and drank it. He paid for it, and this beer was made at this brewery. The contents of the bottles aggregated more than one gallon.

The defendant, now plaintiff in error, testified that sales were made at the brewery after the said election just the same as before, and he and his superiors claimed then, and insist now that they had a legal right to continue to make such sales regardless of the 'results' of the vote of the people. If they were violating the law, they did it defiantly, and with a view, as counsel say, of having a test made of the law and their rights and liabilities under it. This purpose is boldly announced in the brief, and that it might not fail on account of any defect in the indictment, or lack of proof to sustain some allegation, aside from that of the sale as charged, counsel for plaintiff in error entered into written stipulation with the state, which appears of record, attempt-' ing to waive formal defects in the indictment and any lack of proof to sustain certain allegations therein. This way of curing defects, if any, is entitled to take rank as a new discovery in criminal practice, but counsel for plaintiff in error, in all after stages of the case, seems to have abided by the stipulation, apparently through the pressing desire of his client to have a test case made oh the facts and the law applicable to such facts.

The courts below have agreed upon the judgment in the test case, and it now' waits our opinion.

In the character of the instructions which defendant desired given to the jury, the question of the case is evident, but lest we might not comprehend it, counsel mould it in the brief as follows: “Can there be a conviction of the manufacturer, whether he be a person or corporation, under the county local option law, where the manufacturer, who is a manufacturer of beer from the raw material, sells it at the manufactory in' quantities of a gallon or more?” -

We proceed to answer, and note that in various forms of positive assertion, we are urged to believe, that notwithstanding Tuscarawas county was voted “dry” (as the term goes) under the provisions of a law that is plain and free of ambiguity, the manufacturer of beer in such county can legally sell it at the place of making, to be used as a beverage, if the quantity sold is one gallon or more. Saloons and other places where beer is retailed in any quantity whatsoever must close, but the manufacturer may, like the brook, “go on forever,” if he does not condescend to sell in quantities less than one gallon. The fountainhead may flow in gallon or- larger measures, and the thirsty may flock thither and buy, drink and take away for beverage purposes, so they buy in gallon or larger quantities, thus giving the manufacturer a monopoly of the business, and that, too, free of the tax which the state imposes on the saloon or other retailer. The manufacturer —the brewer in this case — becomes a person of most exalted privilege.

At page seventeen of brief for plaintiff in error, counsel exclaim: “In the case at bar, the Tuscarawas Valley Brewing company sold the liquor in a quantity of a gallon or-more to Kuemerly, as it had a perfect right to do. The' company mas not amenable to the payment of the Doto tax, nor to the operation of any of. the provisions of the Rose law upon which this indictment is predicated.” True, the sale under review was of two dozen pint bottles of' beer, and these pints must be added in order to get within the gallon standard, but we apprehend the sale was not made with the expectation that the purchaser would gulp all down at once, but rather use the bottles singly, at least one at a time, for beverage purposes. Can counsel’s view of this law be sound?

Let us see.

The act is entitled: “An act further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in counties.” It was passed March 5, 1908, and took effect September 1, 1908. (99 O. L., 35.)

The first section provides that thirty-five per cent, of the qualified electors of the county may petition the commissioners or any common pleas judge of the county for the privilege to determine by ballot “whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such county,” etc. Acting on such petition a special election is to be ordered, and notice thereof given, which shall be conducted in all respects as are elections for county officers. The result of the election shall be forthwith “entered upon the record of the proceedings of the commissioners, and with the clerk of the common pleas court,” and in all trials for violation of this act, the original entry of the record, or a copy thereof certified by the clerk of the county common pleas court or any commissioner, provided that said record shows that a majority of the votes cast at said election was against the sale of intoxicating liquors as a beverage, “shall be prima facie evidence that the selling, furnishing' or giving away of intoxicating liquors as a beverage, or the keeping of a place where such liquors are sold, kept for sale, given away or furnished, if such selling, furnishing or giving away or keeping of such place occurred after thirty days from the day of holding the election, was then and there prohibited and unlawful.”

Section 2 provides for the form and contents of the ballot to be voted, and then provides that “if a majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage, then from and after thirty days from the date of holding said election, it shall be unlawful for. any person personally, or by agent, within the limits of such county to sell, furnish or give away intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished for beverage purposes, and whoever from and after the thirty days aforesaid violates any of the provisions of this act or in any manner directly or indirectly, sells, furnishes, or gives away or otherwise deals in any intoxicating liquors as a beverage, or keeps or uses a place, structure or vehicle either permanent or transient, for such selling, furnishing or giving away, or in which or from which intoxicating liquors are sold, given away or furnished, or otherwise deal in as aforesaid, shall be guilty of a misdemeanor, and shall on conviction thereof be fined,” etc.

We see no exception of the brewer or manufacturer, and no privilege defined if sold, furnished or given away in quantities of one gallon or more. There is no intimation of such exemption in favor of anyone.

Section three defines the meaning of the phrase “intoxicating liquor” as “any distilled, malt, vinous or any intoxicating liquors whatever.” The only limitation placed on the operation of the statute is found in the section where it is said, “but nothing in this act shall be construed to prevent the selling of intoxicating liquors at retail by a regular druggist for exclusively known medicinal, pharmaceutical, scientific, mechanical or sacramental purposes; and when sold for medicinal purposes, it shall be sold only in good faith upon a written prescription, signed and dated in good faith. by a reputable physician in active practice and the prescription used but once. The words giving away where they occur in this act, shall not apply to the giving away of intoxicating liquors by a person in his private dwelling unless such private dwelling is a place of public resort.” The legislature has carefully hedged about the exception or exemption from the operation of this statute.

The other sections concern matters of procedure —what shall constitute thirty-five per cent, of the electors of the county; the character of record to be made of the results of the election; disposition of fines, etc. The bill as enacted is complete within itself, not depending or conditional upqn any other statute for construction or operation, and on the conceded fact in this case that the beer was sold and purchased to be used as beverage, we are unable to see in this statute any place of refuge for the defendant.

However, it is argued by counsel that it should be construed with reference to the provisions of the township and municipal local option statutes, but more especially to Section 8 of an act passed March 21, 1887, (84 O. L., 224), recently Section 4364-16, Revised Statutes. This section is part of the so-called Dow law, assessing a tax on the business of trafficking in intoxicating liquors, and for the purpose of applying the argument, we quote the section. “The phrase Trafficking in intoxicating liquors’- as used in this act, means the buying or procuring and selling of intoxicating liquors otherwise than upon prescription issued in good faith by reputable physicians in active practice, or for exclusively known medicinal, pharmaceutical or sacramental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one gallon or more at any one time.” This section was amended as to the amount of the- tax by the so-called Aikin law in 98 Ohio Laws, 99, or Section 4364-9, Revised Statutes (Bates’).

Counsel for plaintiff in error also refer to the provisions of the local option laws in townships, being Section 4364-24, et seq.; and the municipal local option law, being Section 4364-20a; and the so-called Brannock residence district local option law, being Section 4364-30a; and we are asked to throw the county local option law into hotch-pot with the others and consider them as one scheme of legislation, construing the county option law with liberal consideration of the other enactments. It is then added, that as all these are a part of chapter 7, Revised Statutes, such mode of construction is necessary.

At this point, it must he observed that since the revision of 1880, until recently, we have had no legislative revision‘of our statutes, and the order in which the statutes were placed, after enactment, was determined by the compiler or publisher of what we have been prone to call the Revised Statutes. Hence the legislature had made no attempt. to weld or merge them. Who has the right or authority to say that the county local option law is but a part only of the former legislation on the liquor traffic? It in no word or phrase refers to prior enactments for local option in townships or municipalities, nor to the statutes taxing the traffic, and it should not be thus unceremoniously consigned to the fellowship of other independent prior statutes. The compiler had' not performed this service as to the act under consideration, when the present controversy started in the courts. However, we may be benefited by a cursory notice of these prior local option statutes. The exception in the township local option law is in favor of one who manufactures and sells cider, or wine manufactured from the pure juice of the grape cultivated in this state; and in favor of a legally registered druggist who sells or furnishes pure wines or liquors for exclusively known medicinal, art, scientific, mechanical or sacramental purposes; but the exception is not to be construed to authorize the keeping of a place where wine, cider or other intoxicating liquors are sold, kept for sale, furnished or given away as a beverage.

The law for local option by municipalities, has a different and broader exception as found in Section 4364-20b, Revised Statutes. There, it is in favor of a manufacturer of intoxicating liquors from the raw material, “to sell, deliver and furnish his product in wholesale quantities to bona fide retail dealers trafficking in intoxicating liquors, or in wholesale quantities to any party or parties residing outside the limits of said municipality.”

The next section defines the rights of a regular druggist to sell for certain purposes on prescription by a regular physician. A person may give away such liquors in his private dwelling, if the same is not a place of public resort.

The so-called Brannock law contains exceptions of a similar nature.

If the law involved here is to be construed with reference to the prior local option law, which one shall be chosen as the standard of comparison? And why should we single out Section 8 quoted above from the Dow-Aikin law arid measure the Rose law by the terms of that section? Where is the authority to import Section 8, supra, bodily into the county local option law? When the latter was enacted, the legislature is presumed to have known of the pre-existing laws referred to by counsel and already cited herein, and if any of the exceptions or exemptions contained in the former acts were in legislative contemplation to be reflected in, or effect the provisions of the new law, why were they not embraced in it by appropriate language, or intelligent reference? Both are absent and we must observe the rule that an exception to the provisions of a statute not suggested by any of its terms should not be introduced by construction from considerations of mere convenience. See Morris Coal Co. v. Donley, 73 Ohio St., 298. Another rule is that consistency of interpretation of a statute is of first importance and requires the assumption that the legislature knew and took into consideration existing legislation. Charles v. Fawley, 71 Ohio St., 50-53. And including none of the provisions of the prior acts, conclusively suggests that they were intentionally excluded.

The principle is akin to the declaration of this court in Slingluff v. Weaver, 66 Ohio St., 621. The first proposition of the syllabus gives the latitude of interpretation. In the second it is said: “But the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law making body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction.”

The plaintiff in error appeals to Senior v. Ratterman, 44 Ohio St., 661, and State v. Rouch, 47 Ohio St., 478, for vindication of his contention, but we- think neither case can be so applied. The question in Senior v. Ratterman, as stated by the court on page 670, was: “Whether wholesale dealers in intoxicating liquors are subject to the tax imposed' 'upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors’ by the act of the general assembly passed May 14, 1886, entitled 'An act to provide against the evils resulting from the traffic in intoxicating liquors.’ ” The court then quotes Section 8 of the act (Dow law), and discusses former legislation and decisions of the court pertaining to the same, but the principle held by this court is in the second section of the syllabus and which is the law declared, to-wit: ''Wholesale ’ dealers in intoxicating liquors, who are not manufacturers, are within the terms of the act of the general assembly passed May 14, 1886, entitled 'An act to provide against the evils resulting from the traffic in intoxicating liquors,’ and are liable to the tax therein imposed.”

So the point involved and decided was that wholesale dealers in intoxicating liquors, who were not manufacturers, were taxable under that law. It was also decided that the law was valid. There is much in the opinion of the court which might be read with profit in connection with this case, but all of it appears in the report - itself. We find nothing there inconsistent with the views expressed here. In fact what appears on pages 672 and 673 of the report cited sustains the position taken in this case.

The controversy in State v. Rouch, supra, related to obtaining a refunding of a portion of the tax paid where the dealer ceased business before the period paid for. This is manifest in the language found on pages 482, 483 and 487 of the report. Section 4 of the township, local option act and Section 11 of the Dow law were under consideration as to the right to a ref under, etc., and it is on page 487 that the court uses the language quoted in the brief, to-wit: “The same meaning applies to Section 4 of the township local option act. The provision is similar as to a return of a ratable portion of the tax paid to that of section eleven of the Dow law. The two acts are in pari materia. Their titles and their subject-matter show that they relate to the same subject. One spirit and policy pervade both statutes and the two are intended to be consistent and harmonious. The refunder provided for is intended to be carried out by one and the same officer, and in one and the same way.”

When we bear in mind the ground of contest in State v. Rouch, supra, we will understand how little light it reflects on the question at bar. We know of no rule or decision that authorizes the court to interpolate into a plain statute a section from an entirely different act.

Finally, it is asserted and argued that the Rose law is unconstitutional; that it is not of uniform operation throughout the state, although a law of a general nature; that it is confiscatory in that it destroys property or its values without compensation, and so on. Since Adler v. Whitbeck, 44 Ohio St., 539; Anderson v. Brewster, same volume, 576; Gordon v. State, 46 Ohio St., 607, and numerous later cases reported without opinion, we have regarded the constitutionality of such legislation as foreclosed. These cases reported without opinion, were decided on the authority of the above cases reported with opinion, and we do not feel justified in setting aside such a steady current of authority.

The enforcement of the county local option law may, and doubtless will, work loss in property investments. It doubtless will cause a decrease in the product of the brewery in counties where the law is in force, and therefore the sales of the product, and thereby diminish the value of the plant, itself. Breweries in adjoining counties may thrive because of the misfortunes of their neighbors. Do such results render the law invalid?

The saloonkeeper or other retail dealer has made the same charge, when either township or municipal local option closed his place of business. Some of such places may have been equipped and furnished at great expense and operated for many years. Their investment of money and property differs from that of the brewer in degree only, and yet the financial loss of the keeper of the saloon, however grand its trappings, has never been sufficient to defeat the law.

Why should such appeal succeed now that the legislature has adopted the larger unit of the county as the field of its operations?

Whether the law in question expresses the best public policy on the subject, is not a question for our determination. That pertains to the legislative department, and not to the judiciary.

The judgment of the circuit court is affirmed.

Judgment affirmed

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