author: Davis, J.

text:
    The Board of Commissioners of Champaign County, Ohio, Etc., v. Church, Etc., Admr. Caldwell v. The Board of Commissioners of Cuyahoga County.

      Suppression of mob violence — Validity of act of April 10, 1896 — - Power of legislature to provide recovery for death and injury — Such legislation not exercise of judicial power — Nor right of trial by jury — Penalty for lynching — Nature of mob — Constitutional law.

      1. The act of the legislature of Ohio, entitled “An act for the Suppression of Mob Violence,” passed April 10, 189C (92 O. L., 136), is constitutional.
    2. The recovery authorized by said act is penal in its nature, and it is within the legislative power to provide therefor. Such legislation is not an exercise of judicial power; nor is it a violation of the right of trial by jury.

      3. . Such recovery, and the tax levy authorized and required by said act, are within the general powers of the legislature, and the provisions of section 7 of article 10 of the constitution; and such recovery and levy are not in contravention of section 19 of article 1 of the constitution.

      4. In an action brought under such statute, to recover the penalty of five thousand dollars, for the death of a person caused by lynching, it is error for the court to charge the jury to the effect that if the collection of individuals, who lynched the deceased, had assembled without any unlawful purpose, and after-wards committed the acts of violence which resulted in the death of such person, the plaintiff could not recover, and that the verdict should be for the defendant.
    5. In an action, brought under such statute, to recover the penalty for an injury caused by lynching, where it is sufficiently alleged in the petition that the plaintiff had suffered a lynching at the hands of a mob composed of a collection of individuals, who had assembled for an unlawful purpose, and attempted to exercise correctional power over the plaintiff and his fellows, the allegations in the petition are not negatived by the specific averments, also contained in the petition, that the plaintiff was struck by “a heavy glass insulator thrown at him by one of the mob,” and that he was “shot through the leg with a leaden bullet fired from a revolver in the hands of some of the mob.”
    (Decided April 10, 1900.)
    Error to the Circuit Court of Champaign County.
    Error to the Circuit Court of Cuyahoga County.
    Benjamin F. Church, as the administrator of Chas. W. Mitchell, deceased, filed a petition against the Board of Commissioners of Champaign county, under the “Act for the Suppression of Mob Violence,” passed April 10,1896 (92 O. L., 136), to recover five thousand dollars for the lynching of said Mitchell, at Urbana, in said county. Defendant demurred to the petition and the demurrer .was sustained by the court of common pleas and the petition dismissed. The circuit court reversed the judgment of the court of common pleas and the defendant then answered.
    The first defense contained in the answer of the defendant is a general denial, and the second defense alleges that the said act is repugnant to the constitution of Ohio. A demurrer to the second defense of the answer was sustained; and on the trial of the case, the court gave to the jury the following special charge upon the request of the defendant: “The jury is charged, as a matter of law, that although you may find and believe from the evidence before you in this case, that said Charles W. Mitchell, referred to in the petition, suffered death at the hands of a collection of individuals in Champaign county, Ohio, on or about the 4th day of June, 1897; if you further find from the evidence that said collection of individuals did not assemble for any unlawful purpose, and did not intend to do damage or injury to any one, and did not pretend to exercise correctional power over other persons by violence, and without authority of law, at the time of assembling, but was or were, attracted and induced through motives of curiosity, and the events that had transpired around the court house yard and jail during the night and morning preceding, to meet and assemble together; and being thus assembled, without any unlawful purpose and not intending to do damage, or injury, to any one, or pretending to exercise correctional power over any other person or persons by violence and without authority of law, afterwards, committed the acts of violence resulting in the death of said Charles W. Mitchell, then the plaintiff in this case cannot recover, and your verdict should be for the defendant.” And afterwards, in the general charge, the court instructed the jury, in part as follows: “Much has been said concerning the meaning of special charge No. 5, given on behalf of the defendant, and the court therefore deems it proper to instruct the jury that the meaning which you are to give to that charge is that, and I give it in the words of the charge itself, omitting the first introductory sentences, if, after being assembled, the collection of individuals referred to before, without any unlawful purpose having been formed and not intending to do damage or injury to any person, or pretending to exercise correctional power over any other person; committed the acts oí
      violence which resulted in the death of Charles W. Mitchell, then the plaintiff cannot recover.”
    “The special charges given you before the argument began are as much the charge of the court as are these general instructions, and so far as it treats of the same subjects, the general charge is to be received in addition to and as explanatory of the special charges.” The verdict was for the defendant and on petition in error the circuit court reversed the judgment of the court of common pleas, for error in the charge of the court.
    J. W. Caldwell brought his action, under the same statute, against the Board of County Commissioners of Cuyahoga County, to recover the sum of one thousand dollars for an injury which he alleged that he had received at the hands of a mob in that county, A demurrer to the petition, on the ground that the petition does not state facts sufficient to constitute a cause of action, and that said act is unconstitutional, was sustained by the court of common pleas, and the judgment of the court of common pleas was affirmed by the circuit court.
    These cases came up on petitions in error to reverse the respective judgments of the circuit court.

      T. J. Frank; E. P. Middleton and 8. 8. Deaton, for the Board of Commissioners of Champaign county, plaintiff in error.
    What is the true construction of the “Act for the Suppression of Mob Violence” involved in this case, Ohio Laws, Vol. 92, page 136, passed April 10, 1896? And what is a mob and what constitutes a lynching within the meaning of said act?
    No such liability against a county as is provided for in this statute existed at'common law. College of Medicine v. Cleveland, 12 Ohio St., 375; Robinson v. Greenville, 42 Ohio St., 625; Gianfortone v. New Or

      leans, 61 (Fed. Rep.) 64 L. R. A., vol. 24, page 592, notes and cases cited; 31 Ill., 543; Schuyler Co. v. Mercer, 4 Gilm. Ill., 20.
    This statute is in derogation of the common law and common law right, and if it be claimed that it is penal in its nature, and is intended to operate in the nature of a penalty and punishment upon each individual tax payer in the county, then it must be interpreted and construed according to the rules for the construction of penal statutes and statutes in derogation of common law rights. 38 Ohio St., 659; 44 Ohio St., 347.
    Also statutes passed in exercise of the police power of the state are to be strictly construed. Am. and Eng. Enel, of Law, Vol. 23, page 348 to 388, notes 1,2 and 3.
    It has been held if the language of a statute is unambiguous there is no rule for construction even though the objects of the act are defeated. McCormick v. Alexander, 2 Ohio, 95; Brunner v. Briggs, 39 Ohio St., 478.
    Nor can plain and explicit language be construed contrary to the express words of the statute on conjecture. 41 Ohio St., 383; 41 Ohio St., 47 to 52.
    This statute, .for the purpose of this case, defines a mob and says, that any collection of individuals assembled for any unlawful purpose, intending to do damage or injury to any one, or pretending to exercise correctional power over other persons by violence, and without authority of law, shall be regarded as a mob.
    Would a collection of individuals, whose assembling together was innocent and for a lawful purpose, not intending to do damage to any one, or pretending to exercise correctional power over other persons by violence, if, after being so assembled, some of them should suddenly, from some unexpected cause or provocation, beat, injure or kill some one, constitute a mob and render the county liable for the consequence of such acts under the provisions of the statute? We think not. State v. Kemp, 26 Mo., 429.
    It follows, if our contention as to the construction of this statute is right, that the court correctly stated the law to the jury in said special charge No. 5 and if the court erred in its modification of said special charge in the general charge, it was error to the prejudice of the plaintiff in error therein, and not the defendant in error.
    The act is unconstitutional and void and in controvention of the following provisions of the Constitution of the State of Ohio. Article 1, Section 1. Bill of Rights. Article I, Section 5. Article II, Section 32. Article I, Section 16. Article I, Section 19. Article IV, Section 1. Article XII, Section 5.
    And is repugnant to Article 14, Section 1 of the amendment to the constitution of the United States.
    This was the first and only statute ever enacted by the legislature of Ohio prescribing a minimum amount of damages to be recovered, and no court in America, except the circuit court of Champaign county, Ohio, has ever yet held such a statute to be constitutional or valid. This statute also differs from all statutes of a similar nature passed in other states in many essential particulars.
    The statute of April 10, 1896, is in violation of Article 1, Section 5 of the constitution. (Trial by Jury.) “The right of trial by jury shall be inviolate.” This right of trial by jury is beyond the power of the general assembly to impair or. to materially change its character. 2 Ohio St., 297.
    The constitutional limitation as to trial by jury, is on the power to abridge, and not on thé power to extend. The right may be extended, but not abridged. Gunsaulus v. Petitt., Admrx., 46 Ohio St., 28; Turn Pike v. Parks et al., 50 Ohio St., 578.
    The right to retain property already in possession is: as sacred as the right to-recover it when dispossessed. The right to defend against the action to recovar money is as necessary as the right to defend one brought to recover specific real or personal property. Coal Co. v. Rosser, 53 Ohio St., 24.
    Deprivation of a remedy is equivalent to the deprivation of the right, which it is intended to vindicate, unless another remedy exists or is substituted for that which is taken away.
    My property is as much imperiled by an action against me for money, as it is by an action against me for my lands or my goods. Board of Education v. Blodgette, 155 Ill., 441.
    All courts shall be open and every person, for an injury done him and his lands, goods, etc., shall have remedy by due course of law. People ex rel v. Supervisors, 74 N. Y., 234; Clark v. Mitchell, 64 Mo., 578; People v. Smith, 25 N. Y., 529; Risser v. Hoyt, 53 Mich., 201; Ziegler v. Ry. Co., 58 Ala., 528; Dartmouth College v. Woodward, 4 Wheat., 518; Bank v. Okley, 4 Wheat. (U. S.), 244.
    This statute is also in violation of Article 2, Section 32 of the state constitution. “The general assembly shall grant no divorce, nor exercise any judicial power not herein expressly conferred.”
    What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law, and of the history of our institutions, as they existed anterior to and at the time of the adoption of the constitution. State ex rel. v. Harmon, 31 Ohio St., 250; Decamp v. Archibald, 50 Ohio St., 625.
    That is not legislative which adjudicates in a particular case — prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government. Erwin’s Appeal, 16 Pa. St., 256; A. & E. Ency. of Law, Yol. 13, page 223 and note; A. & E. Ency of Law, Yol. 19, page 454 and note 3.
    An act of the legislature which undertakes to determine questions of fact and law affecting the rights of persons and property is judicial in its nature and character, and is therefore not a rightful subject of legislation. Powder v. Graham, 4 Fla., 23; Ayers v. Perry, et al., 10 Yerg Tenn., 59; 9 A. M. R., 662; 11 A. M. R., 528; 6 Mich., 193; 26 Cal., 135; 32 Wisc., 406; 3 Scam., 238; Article 1, Section 5; Article 4, Section 1; Article 2, Section 32, State Constitution of Ohio.
    Ascertainment of indebtedness from one to another and a direction for payment are judicial acts which cannot be performed by the legislature. Lane v. Dorman, 4 Ill., 238; Railway Co. v. Gallatin, 99 U. S. R., 761.
    The encroachment of one of the three several departments is Avatched with jealous care and is generally promptly resisted, for the observance of this fundamental law is essential to the maintenance of ■ republican form of government. Longdenberg v. Decker, 16 L. R. A., 112; Harvey v. State, 127 Ind., 588; State v. Noble, 118 Ind., 350; Janesville v. Carpenter, 8 L. R. A., 808.
    The statute involved in this case, by fixing the minimum damages at $5,000.00, is nothing more or less than a legislative judgment, a judicial decree, handed down by the legislature to the court to be carried into effect. Holtz v. Commissioners, 41 Ohio St., 435.
    This statute is unconstitutional for the reason that it is an encroachment of the legislative upon the judicial branch of government, and by its terms necessarily deprives the defendant of any right of trial as to material and disputed facts and subjects the taxpayers of the county to the loss of property without due course of law. Hanson v. Vernon, 27 Iowa, 28; Board of Education v. State, 51 Ohio St., 539; Powder v. Graham, 4 Fla., 23; Caldwell v. Commissioners, 15 Ohio C. C. Rep., 167; 8 C.D., 56.
    The validity of a statute must be determined, not by its form, but by its substance and practical operation. State ex rel. v. Barger et al., 53 Ohio St., 109.
    The constitutionality of a law depends upon its effect and not upon its form. State v. Kipp., 38 Ohio St., 199.
    An act violating the intent and spirit of the constitution is void, though within its strict letter. 34 Ohio St., 431.
    There is another rule of construction of statutes not to be’forgotten in this connection, and that is that statutes in .derogation of common law and delegating the power to levy taxes or assessments must be strictly construed. Enel, of Law., Vol. 23, pages 383 and 395, note 3.
    The Ohio statute is violative of Article 1, Section 19 of the Bill of Rights of the state constitution. This clause of the constitution prohibits the taking of private property for private use. 25 Ohio St., 81; Weismer v. Village of Douglas, 64 N. Y., 99.
    In Western Union Telegraph Co. v. Meyer, Treas., 28 Ohio St., 521, it is decided that the provisions of article XII of the constitution of Ohio, though they relate to finance and taxation, are limitations upon, rather than grants of power of taxation. f

    It is also decided in Ohio where the facts, out of which a moral (or legal) obligation is claimed to arise, are disputed, the contention falls within the province of the courts, under the distribution of governmental powers ascribed by our constitution. Sec. 1, of article IV of the Constitution of 1851.
    Private property, except when taken for public purpose or by legitimate taxation, is as inviolable as personal liberty. Taylor v. Commissioners, 23 Ohio St., 84.
    The statute in question authorizes the taking of private property for private use. The amount of the recovery is not a tax. It does not go into any public fund of the state or county. It is not a fund to be applied to any governmental expense which the state, in the exercise of its police powers, may authorize. Hanson v. Vernon, 1 AM. R., page 215; Palairet’s Appeal, 67 Penn. St., 479; 5 Am. R., 450; 1 Ohio St., 273; 28 Ohio St., 521; 23 Ohio St., 84; 9 Am. R., 622.
    The power of the legislature to impose taxes is not unlimited. It is within the province of the courts to determine in particular cases whether the extreme boundary of legislative power has been reached and passed. 28 Ohio St., 521; 35 Ohio St., 468; 27 Iowa, 28; 19 Wisc., 64; 25 A. & E. Ency. of Law, 74, note 5, cases cited.
    While it is true that, under our constitution, in the apportionment of the governmental powers, the authority to tax necessarily falls to the legislative, yet the legislature cannot confer any greater power than the state itself possesses, and it must observe the restrictions and limitations of the organic law and constitution of the state. Railway v. Commissioners, 1 Ohio St., 77; Dillon Munc. and Cor., Sec. 740.
    Taxation having for its only legitimate object the raising of money for public purposes, and the proper needs of government, the exaction of money from the citizens for other purposes is not a proper exercise of the power, and must therefore be unauthorized. Cooley Constitutional Limitations, 487; I Am. R., page 228; Sharpless case, 21 Penn. St., 167; Prey v. N. Lib., 31 Penn St., 69; New Ency., Vol. 15, p. 307; Cooley on Const. Lim., 479; 4 Wheat., 421; Wilkinson v. Lelan, 2 Peters, 657.
    The act in question presents the case for the levy of a tax for a specific, designated purpose, and from the language of the statute this purpose is private. It is an illegal exaction under the name and guise of a tax.
    It seems to us that the guarantees with which the constitution has invested private property, in this state, prohibit such legislation. Bill of Rights, sections 1 and 19; 23 Ohio St., 84; Telegraph Co. v. Meyer, 28 Ohio St., 521; 34 Ohio St., 440; State ex rel. v. Commissioners, 35 Ohio St., 468; 19 Wis., 64; 1 Am. Rep., 215 to 238; 5 Am. Rep., 452; Caldwell v. Commissioners, C. C. R., Vol. 15, page 267; 25 Ohio St., 91; Ohio Legal News, Vol. 5, number 20, pages 56-59.
    The police power is fettered by limitation. There are limitations upon the police power. The legislative judgment is not always conclusive. Statute passed in the exercise of police power must not be in conflict within any of the provisions of the state or federal constitutions. They must not, under the pretense of regulation, take from the citizen any of the essential rights and privileges which the constitution confers. Cooley’s Const. Lim., 6 Ed., 710; Dillon Munc. Corp. (4 Ed.), Sec. 142; In re Jacobs, 98 N. Y., 50 Am. E., 636, 643.
    The same doctrine was laid down in the case of People v. Gillson, 109 N. Y., 389; Hares Am. Const. Law, 618; 16 Wallace, 36; 20 Wallace, 655.
    It is the business of courts to ascertain and decide whether a constitutional provision is violated under the pretense of exercising police power. The legislature cannot make that a legislative question which is a judicial one. The power to adjudicate where adjudication is necessary is judicial and not legislative. Taylor v. Porter, 4 Hill, 140; Norman v. Heist, 5 Watts & S., 161; Hoke v. Henderson, 4 Dev. (N. C.), 1; Dash v. Van Kleek, 7 Jackson, 477; Goshen v. Stonington, 4 Conn., 209; Fletch v. Peck, 6 Cranch, 87; Trustee, etc. v. Bailey, 10 Fla., 239; Taylor v. Place, 4 R. I., 324; Greenough v. Greenough, 11 Pa. St., 489; People v. Board of Supervisors, 16 N. Y., 424; Railway Co. v. Commissioners, 1 Ohio St., 77; Merrill v. Sherburne, 1 N. H., 199; 9 Am. Rep., 622; 50 Ohio St., 557; State ex rel. v. Tappen, etc., 29 Wis., 664.
    This act is in conflict with the provision of the constitution of our state, which prohibits the legislature from exercising judicial functions and it also controvenes the provision that no person can be deprived of his property without due process of law. Pryor v. Downey, 50 Cal., 388; Ratcliff v. Anderson (31 Graft, 105); State v. Walsh, 136 Mo.; State v. Julo, 129 Mo., 163.
    Finally we submit that the act is repugnant to sections 1, 16 and 19 of the bill of rights, because it denies to the plaintiff in error the right of trial and defense as to material facts, and deprives it of any remedy by due course of law, as provided in section 16; because it provides for the taking of private property for private use in violation of section 19 of the bill of rights, and prevents the tax payers and property owners of the county from protecting their property by due process of laAV.
    It is repugnant to section 5 of the bill of rights, because it denies to the plaintiff in error the right of trial by jury.
    It is repugnant to article 2, section 32 of the state constitution because it is an attempted exercise of judicial power by the legislature. 50 Cal., 388 ; Ratiff v. Anderson, 31 Grat., 105; Howell v. Fry, 19 Ohio St., 559; Turnpike Co. v. Park et al., 50 Ohio St., 557; 169 L. R. A., 112; State v. Tappan, 9 A. M. R., 622.
    It is repugnant to article 14, section 1 of the amendment to the constitution of the United States because it abridges the privileges and immunities of the citizens and deprives them of property without due process of law.
    This statute ex vi termini manifests the legislative intent to compensate the injrued parties in proportion to the damages sustained whether slight, serious or resulting in permanent disability to earn a livelihood by manual labor. The amount of recovery is made to depend upon the extent of the injury received. And by fixing the amount of damages, if the injury be slight, in the sum of $500, or if serious in the sum of $1,000, or if resulting in permanent disability to earn a livelihood by manual labor in the sum of $5,-000, the legislature has left no room for construction or judicial interpretation of the statute. It has by plain and unambiguous language made the statute compensatory and measured the amount of recovery in damages in proportion to the injury received.
    Our contention is strengthened by reference to sections 3 and 5 of the act, in both of which the amount of recovery is denominated “damages.”
    In the construction of this statute the familiar maxim “expressio unkis est exclusio alterius ” or as otherwise expressed, “expressum facit taciturn,” applies with all its force. This well settled rule of interpretation of statutes has been applied in the following cases: 51 Ohio St., 255; 6 Ohio St., 292; 15 Ohio St., 142; 32 Ohio St., 451; 11 Ohio St., 246; 15 Ohio Rep., 452; 28 Ohio St., 515; 18 Ohio St., 452.
    We again assert that the character of the statute as to whether it is compensatory or penal does not depend upon the purpose to be subserved by its enactment, but upon its form, the terms, provisions and words of the act. If this statute is penal it does not appear from the words of the act, they express an intent quite to the contrary. Waller v. Harries, 20 Wend., 562; State v. Heman, 70 Mo., 441; Sutherland Stat. Constr., 235.
    It is the duty of courts to interpret words in their ordinary and natural sense, although the result may conflict with the court’s idea of public policy. 18 Ohio St., 456; 41 Ohio St., 52; Darlington v. Mayor. etc., 31 N. Y., 187.
    Is the act to amend and change the statute under consideration, passed April 21st, 1898, Ohio Laws, Vol. 93, page 161, of an expository nature?
    We think it is, and that the original act, passed April 10th, 1896, 92 O. L., 136, and the amendatory act should be construed together, and that the amended act may be looked to to ascertain the meaning of the original act of April 10th, 1896, and the inferences to he drawn from its terms. A declaratory act in effect expounds the true meaning and intention of a prior legislative act on the same subject. Boom Co. v. Dodge, 31 Pa. St., 285; Washington A. & Gr. Co. v. Martin, 7 D. C., 120; State v. Trustees, 37 Ohio St., 275.
    The amendatory act of April 20th, 1898, Ohio Laws, volume 93, page 161, is purely and absolutely compensatory, and if considered in connection with the original act, the two acts when read and construed together, manifest a legislative intent to make the original act compensatory. The amendatory act has the same effect upon the original act as if the amended statute had been embodied in the original act of April 10th, 1896, at the time of its passage. 37- Ohio St., 275.
    Statutes in pari materia are to be construed together, each legislative act is to be interpreted with reference to other acts relating to the same matter or subject. Black on Interpretation of Laws, 204; U. S. v. Freeman, 3 Howard, 556; Vane v. Lucond, 132 U. S., 220; Leroy v. Chakbolla, 2 Abb. U. S., 448; Fed. Cas., 6267; Grant v. Cook, 7 D. C., 165; Church v. Crocker, 3 Mass., 17; State v. Babcock, 21 Neb., 599; 33 N. W. Rep., 247; Kollenberger v. People, 9 Colo., 233; Billingslea v. Baldwin, 23 Md., 85; Green v. Com., 12 Allen, 155; Hendrix v. Riema, 6 Neb., 516; Ferguson v. Supervisors, 71 Miss., 524; Perkins v. Perkins, 52 Barber, 531.
    Statutes in pari materia passed after the law in question, as well as those enacted before it, may be considered in its interpretation. Chase v. Lord, 77 N. Y., 1; Smith v. People, 47 N. Y., 330; U. S. v. Freeman, 3 Howard, 556 ; Conn. v. Miller, 5 Dana, 320; Railway Co. v. Railway Co., 53 Pa. St., pages 26 to 60; Penitentiary Co. v. Nelms, 65 Ga., 67; Montville v. Houghton, 7 Conn., 543.
    The statement made by defendant in error in his brief, that we claim this act to be penal, for the purpose of strict construction, is not correct. What we did and do claim is that statutes in derogation of the common law and of common law right; statutes imposing taxes, spoliating and confiscating property, and civil damage acts, must receive, a strict construction and will not be extended by construction further than is indicated by the express terms of the law; statutes in modification or derogation of the common law will not be presumed to alter it further than is expressly declared. Howe v. Newcombe, 146 Mass., 76; Dean v. Railway, 199 N. Y., 540; Esterly’s Appeal, 54 Pa. St., 192; State v. Jaeger, 63 Mo., 403; Hines v. Railway Co., 95 N. Car., 439; Wall v. Dovey, 60 Pa. St., 212; Van Norman v. Circuit Judge, 45 Mich., 204; Whitney v. Barnett, 15 Wis., 61; Meidel v. Anthis, 71 Ill., 241; Feutz v. Meadows, 72 Ill., 540; 11 Ohio St., 223.
    Where a statute abrogates a common law right or introduces a right not vested by the common law, it should not be so construed as to go beyond the letter, or even to that extent, unless it appears to the court to be within the spirit and intent of the act. Dewey v. Goodenough, 56 Barb., 54; Sharp v. Spiers, 4 Hill (N. Y.), 76; Dwelly v. Dwelly, 46 Ohio St., 377; Holman v. Bennett, 44 Miss., 323; Shaw v. R. R. Co., 101 U. S., 557; Cook v. Meyer, 73 Ala., 508.

      Charles H. Rosier and George M. Eichelberger, for Church., Adm., defendant in error.
    The authority of the legislature to enact such a statute is clear. It exists under the general grant of legislative power in article II, section 1 of the constitution. This power can be limited only by express prohibition in the constitution. Baker v. Cincinnati, 11 Ohio St., 534; Lehman v. McBride, 15 Ohio St., 573; Cincinnati v. McCann, 21 Ohio St., 198; Cass v. Dillon, 2 Ohio St., 607; Evans v. Dud

      ley, 1 Ohio St., 437; Darlington v. Mayor, etc., 31 New York, 187.
    In the statute called Articula super cartam, Anno 28, Edward I., which confirmed the Great Charter and the Charter of the Forest, and directed that the same should be firmly observed “in every part and article,” it was directed in terms that the statute of Winchester, which gave a remedy against the hundred, for robberies committed in it, should be sent again into every county to be read and published four times a year, and kept in “every point as strictly as the two Great Charters, upon the pains therein limited.” (Reeve, vol. 2, p. 340; Coke, 2 Inst., ch. 17, p. 369.)
    Similar statutes for the payment by cities, towns and counties, of property destroyed by mobs, have been upheld in many states. They have received elaborate judicial examination, and have been sustained as important and beneficial police regulations, based upon the theory that, with proper vigilance on the part of the local authorities, the disorder and injury might and ought to have been prevented. Donoghue v. Philadelphia, 2 Pa. St., 230; Commissioners v. Phila., 13 Pa. St., 76; Allegheny Co. v. Gibson, 90 Pa. St., 397; Allegheny Co v. Gibson, 35 Am. Rep., 670; Darlington v. New York, 31 N. Y., 164; Darlington v. New York, 88 Am. Dec., 248; Ely v. Niagara Co., 36 N. Y., 297; Folsom v. New Orleans, 28 La. Ann., 936; Luke v. Brooklyn, 43 Barb., 54; Searles v. New York, 47 Barb., 447; Wolfe v. Richmond Suprs., 11 Abb. Pr., 270; Wolfe v. Richmond Suprs., 19 How Pr., 370; Bank v. Shaber, 55 Cal., 322; Water Works Co. v. Lake Co., 45 Cal., 90; Street v. New Orleans, 32 La. Ann., 577; Palmer v. Concord, 48 N. H., 211; Palmer v. Concord, 97 Am. Dec., 605; Underhill v. Manchester, 45 N. H., 214; Chadbourne v. New Castle, 48 N. H., 196; Williams v. New Orleans, 23 La. Ann., 507; Granfortone v. New Orleans, Law Rep. Ann., 24, 592.
    Similar laws in regard to human life have been passed in Kansas, Alabama, and other states. The Alabama statute is almost identical with ours. Atchison v. Twine, 9 Kan., 356; Dale County v. Gunter, 46 Ala., 118; Luke v. Calhoun County, 52 Ala., 115.
    The particular objections made by the defense to the statute are:

      (a) That it fixes an absolute amount to be recovered and thus takes away from the county the right of trial by jury.
    (5) That the method of raising the amount of verdict by taxation is unlawful as taking private property for other than public purposes.
    In the first of these objections, the plaintiffs in error insist that this is not a penal statute, and at the same time they insist upon its penal character for the purpose of strict construction.
    Our claim is, that the amount fixed by the statute is not to be considered as exclusively compensatory, but as a penalty as well.
    The very fact that the legislature made the amount a fixed and absolute sum, in itself proves that the recovery was not designated as compensatory or as damages. What would be compensation in one case would not apply in another.
    Therefore, the legislature did not design that there should be any inquiry as to damages, but fixed an amount as absolute regardless of whether the next of kin were pecuniarily injured or not. The penalty had to be disposed of in some way, and the legislature saw fit to cast it as set forth in the act.
    . The Alabama statute, which is. almost identical with ours, 46 Ala., 137.
    The fact that the recovery of the penalty is provided for in a proceeding in its nature civil, does not prevent the act from being a penal act. Nor does the fact that the words “fine,” “forfeiture” or “penalty” do not appear in the act prove that it is not a penal act. It is the purpose and evident intent for which the act was passed that controls this ques tion. Endlich on Interpretation of Statutes, Sec. 331; Aichternacht v. Watmough, 8 Watts and S. (Pa.), 162.
    We believe the right of the legislature to enact a statute giving a private person the right to recover in a civil action a fixed amount of damages is well settled in Railway Co. v. Cook, 37 Ohio St., 265.
    It Avill be observed further that all qui tam actions are practically in the same line with this statute. Bouvier’s Law Dictionary. Qui Tam Actions.
    The statute giving an action for wrongful death (Sec. 6135, Rev. Stat. of Ohio) fixes the maximum amount of recovery, thus limiting the jury to a fixed amount, even should the actual pecuniary damage be greater. The statute, hoAvever, is without question constitutional. Steel v. Kurts, 28 Ohio St., 191.
    A county is a mere subdivision of a state, and has only such powers and rights as the legislature sees fit to confer upon it. Borough of Dinsmore’s Appeal, 52 Pa. St., 374.
    The provision in section 7 of the act making an order to the commissioners to include the recovery in the next tax lei^y a part of the judgment in the case is not unconstitutional. Cooley on Taxation, 480 (1st Ed.); Guilford v. Supervisors, 13 N. Y., 143; Cooley on Taxation, 74; Cooley on Cons. Lira., 598.
    Our OAvn state has approved this principle in the decisions of the supreme court in cases brought to test the validity of the acts to pay bounties to volunteers, on the ground of the acts being promotive of the public welfare and for a public purpose. Cass Tp. v. Dillon, 16 Ohio St., 38; State v. Harris, 17 Ohio St., 608; State v. Wilkesville Tp., 20 Ohio St., 288; State v. Richland Tp., 20 Ohio St., 288; State v. Circleville, 20 Ohio St., 362.
    Courts approach the question of unconstitutionality of legislative enactments with great caution. They are to be held valid unless there is a clear violation of the constitution. The legislature has all power that is not expressly denied it under the constitution. People v. Mahaney, 13 Mich., 481; Cooley Cons. Lim., 200; License Tax Cases, 5 Wall., 462; Perry, v. Keene. N. H., 514; Attorney Gen’l v. Railway Co., 35 Wis., 425.
    The circuit court reversed the court of common pleas for error in giving special charge No. 5, as asked by the defendant in error below and for error of the court of common pleas in its general charge to the jury.
    The effect of that charge in brief was this: That if the persons who lynched Mitchell had come together in the first instance Avithout any intent to commit an unlaAvful act, and being assembled peaceably, afterwards committed the acts of violence complained of, the plaintiff could not recover. Section 1, of the Act of April 10, 1896, 92 O, L., 136.
    The claim of the defendant in error below was, that the intent to do injury or damage must have been formed previous to the assembling; that they must have come together in the first instance with the design already formed, and Avhatever may have been said in the general charge after the arguments, this was the point pressed upon the jury, under charge 5.
    Their claim Aims that this act, being in its nature penal (as they then admitted for the purpose of their claim), was in derogation of the common law, and therefore is to be strictly construed.
    There are no cases in which acts similar to this one have been construed. We, therefore, cite the court to decisions construing the acts in AAdiich mobs and riots are referred to and construed in their common Iuav meaning. United States v. McFarland, 1 Cranch., C. Ct., 140; United States v. Dun, 1 Cranch, C. Ct., 165; State v. Snow, 18 Maine., 346; 1 Campbell, 328; 2 Russel on Crimes, 250; Solomon v. Kingston, N. Y. S. C. R., 562; 24 Hunn., 562; United States v. Stockwell, 4 Cranch, C. Ct., 671.
    It is urged, however, by counsel for plaintiff in error, that even if charge No. 5 was erroneous, that error is cured by the general charge of the court. This we do not concede. Whilst a considerable part of the general charge of the court we admit is unobjectionable, that charge, in express terms, made charge No. 5 a part of the general charge. If it be a part of the general charge, it is plainly contradictory to all the propositions in the general charge, on the subject of what constitutes unlawful assemblages. If contradictory, it was erroneous. If misleading, and it surely is, it was erroneous. Railway Co. v. Terry, 8 Ohio St., 570; Railway Co. v. Krouse, 30 Ohio St., 222; Ins. Co. v. Reed, 33 Ohio St., 283; Avery v. House, 2 C. C., 246; 1 C. D., 468; Mut. Ins. Co. v. Mer., etc. Ins. Co., 5 Ohio St., 450; White v. Thomas, 12 Ohio St., 312; Railway v. Wetmore, 19 Ohio, 110; Railway v. Picksley, 24 Ohio St., 54,
    If charge No. 5 influenced the verdict, and if its meaning is or was uncertain, the plaintiff is thereby prejudiced.
    If charge No. 5 is erroneous, and the court in its general charge afterwards qualified it and gave the true rule, if it be uncertain which rule was intended, it is error, as the jury may have been misled. Railway Co. v. Stallman, 22 Ohio St., 1.
    The rule is, that error in the charge of a trial court to a jury is presumed to be prejudicial unless the record shows that it was not prejudicial. Baldwin v. Bank, 1 Ohio St., 141; Jones v. Bangs, 40 Ohio St., 139.
    If, therefore, as contended by counsel for plaintiff in error, the circuit court did not have all the record before it, and if there was error in the charge of the court, the evident effect was that there was no record to show that that error was not prejudicial. Elster v. Springfield, 49 Ohio St., 82; Harman v. Kelly et al., 14 Ohio St., 502.
    The only effect, as is well established by this court. of the failure to show that the bill of exceptions contained all the evidence, would be to have prevented the circuit court from reversing the common pleas court, on the ground that the verdict was contrary to the weight of the evidence. Mack, Stadler & Co. v. The Great Western Dispatch, 3 C. C., 36; 2 C. D., 22.
    We respectfully submit to the court, however, that were it necessary for the disposition of the questions involved to have a bill of exceptions containing all the evidence, this court can decide whether the bill does affirmatively or by necessary implication show that it contains all the evidence. Railway Co. v. Probst. 30 Ohio St., 104; Cantwell v. State, 18 Ohio St., 477; Ide v. Churchill, 14 Ohio St., 372; Eastman v. White, 4 Ohio St., 156.

      Willis Vickery, for J. W. Caldwell, plaintiff in error.
    Does the petition state facts sufficient to constitute a cause of action against the „defendants in favor of the plaintiff? Can the legislature pass an act making the county responsible for damages done by a mob, that is, damages by way of injury to a person or an individual. ;
    The United States government is a government of limited powers, and has only such powers as have been expressly granted by the people; that is, all the powers that congress has under the constitution are clearly marked out in the constitution itself, and the powers are known either as enumerated powers or incidental powers, and outside of these congress will have no power to act.
    On the other hand, the constitution of the state of Ohio provides for a government of unlimited powers, and whatever is not prohibited by the constitution is reserved to the people thereof, and what is not prohibited in so many words by the constitution of the state of Ohio can be legislated upon by the legislature. People v. Draper, 15 N. Y. St. Rep., 543.

      The wisdom of the law is not a subject for the court to consider; the court cannot declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions or because it is supposed to violate the natural, social or political rights of a citizen unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the constitution. Cooley on Const. Lim., 202, 204.
    It is a well established rule that judges will always lean in favor of the validity of a legislative act; that, if there be a reasonable doubt as to the constitutionality of a statute, they will solve the doubt in favor of the statute. Brice’s American Commonwealth, Vol. 1, page 430; Cooley’s Const., Lim., 195; Second Bay (S. C.), 61; Insker v. Carver, 16 Mich., 1844; Newland v. March, 19 Ill., 376; Roosevelt v. Godard, 52 Barber, 583; Parsons v. Bedford, 3 Peters, 433; Granada v. Brockdon, 112 U. S., 261.
    The courts have nothing to do with the policy, expediency or propriety of the acts of the legislature; such matters are questions for legislative determination, but do not apply to the judiciary. Angle v. Reading Co., 151 U. S., 1; Barb Wire Co. v. Brown, 64 Iowa, 175; North West Reporter, 434; People v. Rochester, 50 N. Y., 525; Sears v. Caldwell, 5 Mich., 251; People v. Draper, 15 N. Y., 532.
    When can a statute be declared invalid because it is opposed to the principles of natural justice or the supposed spirit of the constitution? Loan Ass’n. v. Opeka, 20 Wallace, 655; Home v. McClure, 1 Bay (S. C.), 93, 98; People v. Salem, 20 Mich., 452; Sharpless v. Mayor, 21 Pa. St., 147; Adler v. Whitbach, 44 Ohio St., 562; Morgan v. Nolte, 37 Ohio St., 23; Fletcher v. Beck, 6 Crunch., 87; Reddrick v. State, 101 Ind., 147.
    It has been a uniform rule in this court when the constitutionality of a statute has been under consideration to so construe and interpret its provisions is possible as to sustain and not defeat the law. 81 Ind., 327; 102 Ind., 319.
    This is not a new question which is now for the first time before the courts even in the form of providing compensation to the person. It is as old as English law and it is said that Canute the Dane brought the law into England from Denmark, and we find it laid down in English law that the Hundred was made responsible to the extent of forty marks for the death of any person happening within the boundaries of the ville. Reeve’s History of English Law, page 17.
    And this provision Avas carried into English statutes in some modified form doAvn to the reign of George the Fourth, and as the Hundreds were not corporations, all action was to be brought against the High Constable; and on judgment being rendered the sheriff was to write his warrant on the county treasury for the amount of the recovery. The money was to be collected by local taxation and the Hundred made liable. This provision has no direct bearing on the present case except to show that the policy is coeval with the laws of England and one Avhich has been constantly acted on in England. 31 N. Y. Rep., 189.
    It will be argued that in the 12 Ohio St. the case of the Western Medical College against the city of Cleveland, decided that the municipality could not be held accountable. That case is an authority that Avhere a statute had been passed either a municipality or a county might be made responsible. We take this statute to be in the form of a remedial statute passed for the purpose of providing a remedy where none had before existed.
    The case of Darlington against Mayos is again reported in 88 American Decisions, and at a note at the end of that case there is a collection of authorities bearing upon this class of cases.

      P. H. Kaiser, County Solicitor, and T. L. Taft, Asst. County Solicitor, for Board of Commissioners of .Cuyahoga county, defendants in error.
    There are fatal defects in the statute other than such as arise from its unconstitutionality.
    This statute is void, because the language employed therein is so indefinite that the intent of the legislature is not ascertainable, and therefore, the enforcement of the statute is impossible. What, for instance, is the meaning of the phrase, “to exercise correctional power,” as found in section 1 ? What is the meaning and scope of the phrase, “any act of violence,” in that section? Is a man “lynched” when a mob merely unlawfully touches him, and is one thus merely unlawfully touched by a mob to recover $500 under section 4? What is the meaning of the phrase “temporarily disabling,” in section 2 ? Does it mean disabling for the period of one hour, or one day, or for one, two or five years? And is it a disability of such uncertain and indefinite duration for which section 4 confers the right to recover of a county a thousand dollars? What is the meaning of the phrase, “by voilence,” as used in section 1? How much violence does that phrase imply? Are all degrees of violence equally “lynching,” for which under section 4, a party may recover from $500 to $5000? This statute is punitive and penal in its character. The sums recoverable therein are absolutely forfeited, if the conditions of recovery exist. Neither more nor less than the amount stated in the statute can be recovered. Such a notion as that of the measure of damages has no place whatever in this statute. A statute which imposes a forfeiture must be clear, and the intention manifest. Bond v. Swearinger, 1 Ohio, 395; State ex rel. Brickman, 7 C. C., 165; 3 C. D., 710.
    The provisions of the act under consideration are incompatible with the provisions of other related legislation which this act does not purport to either repeal, amend or supplement, and, therefore, it is unenforceable. Section 2828 fixes the maximum rate of taxation for county purposes, beyond which county commissioners may not go in the levying of taxes; but section 7 of the act in question provides that “an order to the commissioners of any county against which such recovery may be made, to include the same, with cost of action, in the next succeeding tax levy for said county, shall form a part of the judgment in every such case.” There is no provision for paying the amount of these recoveries by installments, but the entire aggregate the statute requires to be put into the next succeeding tax levy.
    The statute in question may become unenforceable by reason of the aggregate amounts of recoveries against a county equalling or exceeding the entire tax duplicate of the county.
    This statute opens a wide door for the perpetration of frauds upon the counties of this state and is, therefore, against public policy and void.
    Under this legislation by conspiracy three or more persons (“a collection of individuals”) might assemble for the unlawful purpose of making an assault upon one of their own number, in order that the injured party might maintain an action against the county for $500 or $1000, as the case may be, and then divide the spoils among the conspirators, it being practically impossible to ever discover the fact of the conspiracy.
    Sections 3 and 4 provide for the recovery of certain fixed and definite sums for the injuries therein mentioned, and that too without any reference whatsoever to the actual damages sustained, The statute contemplate no such idea as that of the measure. Taxation is a mode of taking private property. Section 19 of the bill of rights provides that, “Private property shall ever be held inviolate, but subservient to the public welfare.” This statute takes private property and makes it subservient to private welfare. Weismer v. Village of Douglas, 64 N. Y., 99.
    The legislature cannot authorize private property to be taken for private use. 1 Ohio St., 617.
    Section 3 of this act in effect provides for the recovery of $1000 for a mere assault. If this sum is to be regarded as a fine upon the county, it is grossly excessive, and hence, in violation of Sec. 9, Art. 1 of the Ohio constitution.
    Section 8 of the act is a section which defines a crime, but omits to fix any penalty, whatsoever, leaving the matter of penalty wholly to the discretion of the court. Such legislation is clearly unconstitutional for several reasons. 1st. It is an attempt to clothe a court with legislative power, that is power to fix penalties for crimes, which is contrary to article 2, section 1 of the Ohio constitution, which provides as follows: Legislative power cannot be delegated. Railroad Company v. Commissioners, 1 Ohio St., 77; 14 Amendment, Fed. Const., and 10 Met, (Mass.), 26; 4 Ohio N. P. Reports, 251; 6 Dec., 367.
    At common laiv a county cannot be held liable for the negligence or other wrongful acts of its officers. Commissioners v. Mighels, 7 Ohio St., 110; Western College, etc., v. City of Cleveland, 12 Ohio St., 377.
   Davis, J.

These cases require a decision of the question whether “An act for the Suppression of Mob Violence,” passed April 10,1896 (92 O. L., 136), is constitutional.

It is argued that the provisions of this statute contravene article one of the fourteenth amendment to the constitution of the United States, and are also repugnant to the constitution of Ohio; because they violate the right of trial by jury, because they authorize the taking of property without due process of law, because they are a violation of private rights, of property, because they are an exercise of judicial functions by the legislature, and because the object and purposes of the statute are not within the taxing power.

In the ardor of attack, it seems to have been overlooked that the constitution extends its protection over individuals, as well as counties and municipal corporations. Even a criminal has some rights which cannot be forfeited. Every person who is accused of crime, is guaranteed a fair trial; and he cannot be deprived of life or liberty without due process of law. The faith of the body politic is pledged to make good the constitutional guarantees to the individual. To the counties and municipal corporations are delegated, in large measure, the duties of local administration. Within their jurisdiction they stand in the place of the state, in enforcing the laws, and in protecting the life, the liberty and the property of the citizen. If a large number of the people of any county become imbued with the lynching spirit, or negligent and indifferent to the due and orderly enforcement of the laws, so that lawless men may act with impunity, then there is no course for the state to take, other than to intervene and directly protect the individual, as well as to enforce upon the community the observance of good order/

The power of the state to do this cannot well be questioned. What is known as the police power is based on the public safety, the public health and morals, and the general welfare; and it is, therefore, as broad as these conditions may require. In this respect, as in other respects, the power of the legislative branch of the state government is plenary, except as it may be specifically and clearly limited in the constitution. Within these limitations the legislature may prescribe such laws, sanctioned by fines, penalties, forfeitures or damages, as will enforce the observance of the peace and dignity of the state, and compensate the injured party; for, unfortunately the public conscience is oftentimes more easily quickened in this way than by teaching and persuasion.

Now as to the alleged violation of the right of trial by jury, it may well be doubted whether counties and municipalities have any such absolute right of trial by jury that they may complain of its infringement by the legislature. They are creatures of constitutional and legislative enactment. They have only such powers and privileges as are given them, and these powers and privileges may, in general, be modified or taken away.

But cases like these need not be disposed of on that ground. The contention is that the statute deprives the defendant of the right to have the amount to be paid assessed by a jnry as damages. A county or municipality can no more complain of this statute as an infringement npon the right of trial by jury, than the man who has been tried by a jury and found guilty of a crime, can complain that the law under which he is tried does not provide that the jury shall assess the amount of his fine, or adjudge the extent of his imprisonment. The primary purpose of the legislature was punishment and correction. The expressed object of the law is “the suppression of mob violence.” That the legislature might, in the exercise of the police power, fix the amount of a penalty without the intervention of a jury was lo.ng ago decided by this court in Cincinnati, Sandusky and Cleveland Railroad Company v. Cook, 37 Ohio St., 265. And this being so, it is of no concern to the party paying the penalty, to whom the state, in its sovereignty, may pay it. It may well, as under this statute, turn the money over to those who suffer by the act of lynching. In this respect, it makes no difference whether in the statute it be called penalty, or compensation, or damages. Nor does it alter the case that the amount is fixed, that is, determined by the statute, as in this case; or Oiat it is to be found by a jury. Nor yet does it matter that it is declared to be “for the suppression of mob violence,” as in this case, or “for compensating parties whose property may be destroyed in consequence of mobs or riots,” as in the statute which was upheld in Darlington v. The Mayor, etc., 31 N. Y.. 187; because the imposition of any amount by authority of the state is, in either case, essentially penal and corrective in its nature. The party paying the money so recovered, that is, as a penalty, has no right to complain that the sovereign pays it over to the person injured, or pays it for the benefit of the minor children of a person suffering death by lynching, or to the next of kin of such person; nor that the sovereign provides that “such recovery shall not be regarded' as a part of the estate of the person lynched, nor be subject to any of his liabilities.” Nor is it a matter which can be put in issue for trial by jury; for the legislature does not authorize, nor attempt, a compensation of the injury according to the measure of the injury, to be settled on an inquirj of damages.

We have dwelt on this phase of the law more than we have thought necessary, because it is the source of the main contention in these cases. We shall very briefly advert to the remaining questions presented for our consideration.

In the nature of things, the limitations of the taxing power are not ordinarily, nor necessarily, limitations on the police power; but the matter is set at rest for the cases at bar, by the constitution itself, which provides as follows: “The commissioners of counties, the trustees of townships, and of other similar boards, shall have such power of local taxation, for police purposes, as may be prescribed by law.” Const., Art. x, See. 7. This court held in Sessions v. Crunkilton et al., 20 Ohio St., 349, 358, that when local taxation is exercised for purposes which are demanded by, or are conducive to, public health, convenience, or welfare, it is within the constitutional meaning of “police purposes.”

From what has been said, it will appear that this statute does not authorize, nor attempt, the taking of private property for a private use, nor even the taking of private property for a public use in the exercise of the right of eminent domain. It authorizes the recovery of a penalty against the county, and authorizes an order to be made on the commissioners of the county, to include the same in the next succeeding tax levy. This, as we have seen, the legislature has power to enact, under the general police power, the general taxing power, and Sec. 7, Art x, of the constitution. Hence section 19 of article. 1 of the constitution does not apply.

Again, this legislation is not an exercise of judicial power; because it does not adjudicate any transaction, case, or controversy, which arose before its enactment, and of which the judicial tribunals might have been cognizant. It provides what shall be the law, binding upon the judicial department, after its enactment; and is not, in any sense, a trespass upon the province of the courts.

Having disposed of the foregoing objections to the statute, Ave assume that the contention that it provides for the taking of property without due process of laAV, is already sufficiently answered. Many other questions have been raised and discussed. They are all such as might well have been addressed to the legislature; but they cannot be considered here. We conclude that the act is constitutional.

On the trial of the case of Church, Adm., etc., v. The Commissioners of Champaign County, in the common pleas court, the court charged the jury in substance, that if the collection of persons who lynched Mitchell, had assembled without any unlawful purpose, and afterwards committed the acts of violence Avhich resulted in the death of Mitchell, the plaintiff could not recover, and the verdict should be for the defendant.

The court afterwards made an explanation of this instruction; but the explanation did not explain, especially since the court instructed the jury that such unlawful purpose or design may be formed either before or at the time of assembling, “or it may be formed with the agreement of mutual assistance after they have assembled,” and that, “no formal or express agreement need be proved to establish such unlawful purpose, but it may be inferred from all the facts and circumstances proved in the case and its existence and the time of its formation are questions of fact for the jury.” And the court not only refused to instruct the jury, as requested by the plaintiff, that the fact that Mitchell was lynched was evidence that the individuals who lynched him intended to lynch him; but instead, the court charged the jury that the lynching of Mitchell might be considered as evidence of the unlawful intent; and also charged that such lynching did not raise a presumption of law that they assembled with that intent. The charge when all taken together, seems, very plainly, to have told the jury that if the crowd came together with an innocent purpose, and afterwards lynched Mitchell, they would not be a mob unless they had specifically agreed to be' a mob, after they had assembled. This charge is not merely seriously misleading. It is erroneous. It is an ancient doctrine in the criminal law, as old as Hale’s Pleas of the Crown, at least, that, although the assembly was lawful, the persons assembled might unite in unlawful conduct and thus become rioters.

In Caldwell v. Commissioners of Cuyahoga County, a demurrer to the petition was sustained in the court of common pleas, and the petition was dismissed. This judgment was affirmed by the circuit court. Besides the constitutional objections which we have already considered, the counsel for the commissioners urge that the petition is defective, because the plaintiff therein avers that he was struck by “a heavy glass insulator thrown at him by one of the mob,” and was “short through the leg with a leaden bullet, fired from a revolver in the hands of some of the mob.” It is argued that as the shooting was done by a, pistol in the hands of one person, and as the glass insulator was thrown by one person, it does not appear that the specific acts which occasioned the plaintiff’s injuries were the acts of a “collection of individuals” or a “mob.”

We do not think that there is much force in this argument. It is clearly alleged in the petition that the plaintiff and his fellow workmen were assaulted by a collection of individual's, who had assembled‘/or an unlawful purpose, and tried to exercise correctional power over the plaintiff and his fellows, without any authority of law; and that thus and thereby the plaintiff suffered a lynching at the hands of said mob.

The petition contains a sufficient statement of a cause of action against the county, under the statute in question; and the details which are set forth in the petition are not inconsistent with the more general averments contained therein. The demurrer should have been overruled. We have carefully considered all of the arguments and authorities which counsel have submitted, and we are thoroughly satisfied with the foregoing conclusions.

In Commissioners v. Church, administrator of Mitchell, the judgment of the circuit court is

Affirmed.

In Caldwell v. Commissioners, the judgment of the circuit court and the judgment of the court of common pleas, are Reversed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    State ex rel. Attorney General v. The Capital City Dairy Company.

      Pure food laws — Manufacture of oleomargarine — Police power of the state ■ — •Dairy products— Validity of acts of March 7, 1890, May 16, 1894, May 17, 1886, etc. — Punishment by criminal' law does not bar quo warranto proceedings, when — Violation of law by corporation — Constitutional law.

    1. The police power of the state is properly exercised in the prevention of deception in the sale of dairy products, and in the protection of the health of the people, and it is within the scope of this power to regulate the manufacture and sale of articles of food, even though the right to manufacture and sell such articles is a natural right guaranteed by the constitution.
    2. The acts of March 7, 1890 (87 O. L., 51), and of May 16, 1894 (91 O. L., 274), and of May 17, 1886 (83 O. L., 178), as amended March 21, 1887 (84 O. L., 182), and of March 20, 1884 (81 O. L., 67), (the purpose of which acts is to prevent deception in the sale of dairy products and to preserve the public health), are a reasonable exercise of the police power, and do not contravene any section of the constitution.
    3. The mere fact that the criminal laws of the state provide for the punishment, by fine, of those who offend against the above recited sections, is not a bar to a proceeding in quo warranto to oust a corporation engaged in the manufacture of oleomargarine, from the exercise of its right to be a corporation.
    4. Where the manner of conducting a business, which the state’s charter gives power to a company to conduct as a corporation, is in disregard and defiance of the laws of the state relating to that business, an abuse of the power results, and quo warranto may properly be invoked to stop the abuse, and, if the abuse be flagrant, to oust the corporation.
    (Decided April 10, 1900.)
    Quo Warranto.

      F. 8. Monnett, Attorney General and B. B. Dillon. for plaintiff.
    One defense to this action advanced by tbe defendant is as follows: “That the charges made against this defendant by said petition, are all of them crimes under the statutes of Ohio.” In defense of this quo warranto action against the defendant it might be sarcastically said that the state of Ohio has no other adequate remedy at law. A corporation as such, cannot be punished for violating the pure food statutes. It is a small tax indeed for them to pay the little fine of its manager from time to time, if a conviction be secured before a jury of twelve men, and has run the usual test by passing through the three higher courts. There is no law in this state providing for the recovery by civil action, of a money penalty for violating the oleomargarine laws. Likewise we have no laws permitting the summary destruction of oleomargarine found upon the markets in violation of the law. The only remedy which the state of Ohio and public has, is to arrest a grocer and call in a jury of twelve men of its citizens, asking them to brand as a criminal a man of otherwise good reputation, for a crime which they claim is not malum in se. The results of these prosecutions and of the thousands of dollars spent by the dairy and food department, endeavoring to enforce this law, has shown that this one defendant corporation has been stronger than the laAV itself,, and that this open defiance of the laws has been aided by unscrupulous jurymen, who, in violation or ignorance of their oaths, have rendered it impossible for the dairy and food department of this state, with the appropriations and force assigned to it, to cope successfully with this one evil. See report of J. E. Blackburn, Dairy and Food Commissioner for the year 1898, page 7.
    “I am aware that this is not a very flattering statement to make about jurymen, but having seen the operation of the law in these cases, I am forced to the conclusion that those who usually serve on juries are sufficiently human to protect their own interests first, and depend upon the future to right the wrong to the public.”

      Therefore, as we have remarked before about this claim of the defendant that there are criminal statutes covering the charges contained in the plaintiff’s petition, we might say that we have no “adequate remedy at laAv.”
    We are familiar with injunctions issued, by the Federal courts to prevent interference with or the stoppage of the United States mail, although such act is, of itself, a crime. This doctrine is more fully set forth and discussed in re Debs, 158 U. S., 564; 13 Ency of Pleading and Practice, 502; Ayres v. Board, 42 Mich., 422.
    We apprehend that no one will seriously contend that a corporation created by the laAvs of this state, and empowered with certain rights and privileges, Avill be permitted to violate every laAv it pleases, and do so with impunity upon the theory that the only remedy the state has, is to punish it, or rather to attempt to punish it criminally for such infraction.
    The relief prayed for in this case is two-fold.
    First. That the defendant corporation be ousted from the exercise of the unlawful acts and privileges complained of. And —
    Second. To oust the corporation from its entire charter and wind the same up in accordance with the statutes.
    Section 6761 of the Revised Statutes, section 6780.
    As bearing upon this subject Ave call the court’s attention to the quo warranto case of the State of Ohio v. the Bldg & L. Ass., 35 Ohio St., 258; State ex rel. v. Canal Company, 23 Ohio St., 121.
    The question as to the constitutionality of these laAvs has been raised and settled in this state in the case of Palmer v. State, 39 Ohio St., 236; 17 vol. Am. & Eng. Ency. Law, 180.
    And a similar statute to our own, i. e., forbidding the manufacture of oleomargarine in semblance of butter, is declared valid and constitutional in the case of Butler v. Chambers, 36 Minn., 69. The discussion of this subject in that case is so learned that we invite the court’s attention to the case without excerpting therefrom. McAllister v. State, 72 Md., 390.
    Even so radical legislation as chapter 8 of the West Virginia Acts of 1891, requiring all oleomargarine, whether manufactured within or without the state, to be colored pink, is held to be constitutional. State v. Myers, 42 W. Va., 822. And further holds that such legislation does not violate the U. S. Interstate Commerce Laws. State v. Newton, 50 N. J. L., 534.
    And this pink legislation is also declared valid in the ease of State v. Marshal, 64 N. H., 549; Cook v. State, 110 Ala., 40.
    The Ohio laws do not seek to compel oleomargarine to disgrace itself by taking on a pink color, nor do they seek prohibition of its sale. Their sole object is a reasonable regulation. Cooley Const. Lim. (3rd Ed.), 168; People v. Arensberg, 105 N. Y., 123; Commonwealth v. Huntley, 156 Mass., 236; State v. Horgan, 55 Minn., 183; Powell v. Pennsylvania, 127 U. S., 678; Schollenberger v. Pennsylvania, 171 U. S., 1.
    For these same reasons, “upon the principle recognized in the Pennsylvania cases,” the pink law of New Hampshire as to outside shippers is held invalid in the case of Collins v. New Hampshire, 171 U. S., 30.
    Another authoritative case on the subject of state regulation of oleomargarine, imported into the state, is found in Plumley v. Massachusetts, 155 U. S., 461.

      Thomas Ewing Steele, for defendant.
    Reduced to their last analysis, the cases cited to sustain the plaintiff stand for the following propositions :

      1. “It is proper for the state to prohibit the manufacture or sale of any substance which may or might be used instead of butter.”
    2. “Assuming that the prohibition of apple sauce, currant jelly or pulverized sugar is not included in the above, then it is. held that the prohibition is still effective against any compound however harmless or nutritious, -which in general appearance resembles butter, whether such resemblance be intended or accidental.”
    3. “Oleomargarine may be lawfully made, but it must not be colored in imitation of yellow butter made from unadulterated milk or cream.”
    The first and second of these propositions is no longer seriously defended. People v. Marx, 99 N. Y., 386 (2 N. E. Rep., 29) ; Schollenberger v. Pennsylvania, 171 U. S., 1.
    The Schollenberger case was followed by the case of Collins v. New Hampshire, 171 U. S., 30. This decision so far as butterine imported into the state goes, completely knocks out the infamous “pink” legislation which had been sustained in State v. Marshall, supra, which decision is relied upon for support in many cases cited by the plaintiff.
    As early as 1895 Judge Hughes, in the circuit court of the United States for the Eastern District of Virginia decided as unconstitutional the Virginia statute, which virtually prohibited the manufacture and sale of oleomargarine. Ex parte Scott, 66 Fed. Rep., 45.
    Slight reflection will convince us that the Ohio statutes under investigation cling to the obsolete propositions once vindicated by State v. Marshall and Powell v. Pennsylvania.

    Whether or no the Act of March 7, 1890, be unconstitutional is less important than the determination of the validity of the act of May 16, 1894, which prohibits the manufacture and sale of oleomargarine containing annatto or any other coloring matter. We have no fault to find with this statute in so far as it prohibits the use of analine dyes and other poisonous coloring matter. Such dyes are only found in butter made by the farmer or the Ohio State University. They are not found in oleomargarine as now made in the United States; the only coloring matter the defendant is accused of using is derived from the harmless South American berry, annatto. Annatto, therefore, not being deleterious to public health, and there being of course many other coloring matters, including oleo oil and lactochrome equally so, a statute forbidding the use of annatto or any other harmless coloring matter cannot be upheld as a sanitary regulation. It must rely for support, if support it has, upon the proposition that it is a proper exercise of the police power of the state to so regulate the manufacture and sale of oleomargarine as to effectually safeguard against its being sold or offered for sale, as dairy butter. The safeguards outside of the “color” law are many and effective.
    1. Every dealer must have a retail license from the general government.
    2. Exery box of oleomargarine by him received and offered for sale must contain a revenue stamp and a “caution” similar to that found on a barrel of whiskey or a box of cigars.
    3. He must keep the product in and sell it out of that stamped receptacle.
    4. He must stamp upon every package or parcel sold or delivered to any consumer, the word oleomargarine.
    5. He must have displayed in his place of business a gigantic sign with the legend, “Oleomargarine sold here.”
    6. He must stamp upon every package or parcel sold to the consumer, the statement that it is oleomargarine, together with the ingredients of which it is compounded and the percentage of each.
    It is idle to argue that these regulations may be disregarded by lawless, men; so may be the laws against coloring oleomargarine; so are the obsolete laws of Pennsylvania prohibiting the manufacture and sale thereof.
    We must consider the law as it is, assuming that unless too tyrannical, it will be obeyed by the vast majority of the people, and will be enforced against the rest.
    The statute of 1890 by its very terms is nugatory. It not only forbids coloring oleomargarine, but prohibits the use of any ingredient, which may cause the product to resemble butter. Oleomargarine contains all of the constituents of butter and no other, and there are none of the constituents of oleomargarine absent from butter. It is manifestly impossible to prevent oleomargarine from looking like or appearing to .be butter in its natural state, unless it be purposely disfigured by coloration.
    The maker or vendor of oleomargarine stands not in the position of the maker or vendor of intoxicating liquor, whose business is expressly branded by our state constitution, but on the contrary occupies the same position as the baker of bread or the maker of butter. In supplying food to his fellowmen, he is contributing to the public welfare. The power to regulate his private business except as unmistakably required by the public welfare, is not conferred upon the legislature of Ohio. Fine words butter no parsnips, and merely repeating the phrase, “police power,” will not sanctify or excuse depriving the citizen of an inherent right.
    All political power is inherent in the people; the government is instituted for their equal protection and benefit.
    Private property shall ever be held inviolate. Ohio Const., Art. 1, Secs. 1, 2- and 19.
    This court has been vigilant in guarding the rights of the individual from usurpation by the state.
    In Palmer v. Tingle, 55 Ohio St., 423, the Mechanic Lien Law of 1894, which, had been welcomed as a boon by many citizens of Ohio, was reluctantly declared unconstitutional because it invaded’ the individual's right to contract.
    'In People v. Marx, 99 N. Y., 377, cited with approval by this court, a statute was declared unconstitutional which made it a crime to manufacture any substance from oleagenous substances if designed to take the place of butter.

      In re Jacobs, 98 N. Y., 98, involved the constitutionality of an act forbidding the manufacture of cigars and preparations of tobacco in any form in tenement houses, if the maker occupied as his home or residence or for the purpose of living, sleeping, cooking or doing any household work therein, any part of the same floor whereon he worked. ‘ The law was declared unconstitutional and the opinion of Judge Earl has become a legal classic.
    There is no unlimited discretion vested in the legislature. Marbury v. Madison, 1 Cranch., 137.
    In People v. Gillison, 109 N. Y., 383 (17 N. E., 343), a worthy brother of the learned judge who spoke for the supreme court of the United States in reversing its decision against oleomargarine, delivered the opinion of the New York court of appeals, which declared unconstitutional a law declaring it a misdemeanor for a person who sold food to give away therewith as a part of the transaction of sale, any other thing as a premium or gift.
    Among other cases decided by this court wherein the police power of the state was denied as against the liberty of the citizen, we note State v. Lake Erie Iron Co., cited in 55 Ohio St., 442, which held as unconstitutional a law requiring corporations to pay their employes at least twice a month. Also Hocking Coal Co v. Rosser, 43 Ohio St., 12, which decided unconstitutional and void a statute providing that an attorney fee might be taxed where a laboring man was compelled to sue for his wages and recovered the full amount of the claim, which, three days before suing, he had presented to his employer.
    Many other authorities may be cited, all upholding the general principle well stated by Mr. Justice Swayne in his opinion in the Slaughter House Case, 16 Wall., 127.
   Spear, J.

Evidence in support of these charges was introduced on the part of Jim state. No evidence was offered by defendant. J Without going into detail, it is sufficient to say that the evidence compels the conclusion that the acts charged have been committed by defendant, and that their frequency and the conduct of the officers of the department in relation thereto, warrant the further conclusion that the acts were committed wilfully and with the intent to disregard the provisions of statute, and to defy the officers of the state whose specific duty it is to enforce the law in this behalf. So that the natural results of all such acts are presumed to have been intended. Objection is offered to the competency of testimony as to acts of the defendant since the commencement of this proceeding. But, inasmuch as the matter of final judgment depends somewhat upon the discretion of the court, we regard this evidence competent as bearing upon the animus, purpose, knowledge and intent of the defendant, and as calculated to aid the court in the exercise of a proper discretion respecting the character of the judgment to be entered.

The defense offered is two-fold. First, that the acts, a violation of which is charged, are unconstitutional as being an arbitrary and unauthorized attempt to interfere with the natural right to conduct a legitimate business, which is beneficial to the public as well as profitable to its promoters; and, second, that this proceeding cannot be maintained because, if the laws referred to be valid, their violation is punishabíé in a criminal proceeding and a definite, adequate, penal sentence may follow a conviction in such proceeding. And, beside, the right to manufacture and vend oleomargarine is not a franchise, and its abuse, should the same be shown, is not the abuse or misuse of a franchise and not the proper subject of a quo toarranto proceeding. Hence, relator has mistaken his remedy and its petition should be dismissed.

The statutes claimed to have been violated are the act of March 7, 1890, entitled “an act to prevent deception in the sale of dairy products and to preserve the public health,” annotated in Bates’ Statutes as sections 4200-13-14, by which it is provided that:

(4200-13.) “No person by himself or his agent, or his employe, shall render or manufacture for sale out of any animal or vegetable oils, not produced from unadulterated milk or cream from the same, any article in imitation or semblance of natural butter or cheese, produced from pure unadulterated milk or cream from the same, nor compound with or add to milk, cream or butter, any acids or other deleterious substance, or animal fats, or animal or vegetable oils not produced from milk or cream, so as to produce any article or substance or any human food in imitation or semblance of natural butter or cheese, nor shall sell, keep for sale, or offer for sale, any article, substance, or compound made, manufactured or produced in violation of the provisions of this section whether such article, substance or compound shall be made or produced in this state or elsewhere.”

(4200-14.) “For the purpose of this act, the terms ‘natural butter and cheese,’ ‘natural butter or cheese produced from pure' unadulterated milk or cream from the same, butter and cheese, made from unadulterated milk or cream, butter or cheese, the product of the dairy,’ and butter or cheese shall be understood to mean the products usually known by the terms butter and cheese and which butter is manufactured exclusively from pure milk or cream or both, with salt and with or without any harmless coloring matter, and which cheese is manufactured exclusively from pure milk or cream or both, with salt and rennet and with or without any harmless coloring matter or sage. It is further provided that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form and in such manner as will advise the consumer of its real character, free from any coloring matter, or other ingredient causing it to look like or to appear to be butter, as above defined.”

Also, the act of May 16, 1894, having a like title, now section 4200-16, which reads:

“No person shall manufacture, offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine which contains any methly (methyl) orange, butter yellow, annatto, analine dye, or any other coloring matter.”

Also, the first section of the act of May 17, 1886, as amended March 21,1887, entitled “an act * * * to prevent adulteration and deception in the sale of dairy products,” now section 4200-30, which provides:

“That no person shall sell, expose or offer for sale or exchange, any substance purporting, appearing, or represented to be butter or cheese, or having the semblance of either butter or cheese, which substance is not made wholly from pure milk or cream, salt and harmless coloring matter, unless it is done under its true name, and each vessel, package, roll or parcel of such substance has distinctly and durably painted, stamped, stenciled or marked thereon, the true name of such substance in ordinary bold-faced capital letters not less than five-line pica in size and also the name of each article or ingredient used or entering into the composition of such substance in ordinary bold-faced letters not (less) than pica in size, or sell or dispose of in any manner to another, any such substance without delivering with each amount sold or disposed of, a label on which is plainly or legibly printed in ordinary bold-faced capital letters not less than five line pica in size, the true name of such substance, and also the name of such articles used and entering into the composition of such substance in ordinary bold-faced letters, not less than pica in Size, if the same be not made wholly from pure milk or cream, salt and harmless coloring matter, and the words ‘Butter/ ‘Creamery’ or ‘Dairy/ or any word or combination of words embracing the same shall not be placed on any vessel, package, roll, or parcel containing any imitation dairy product or substance not made wholly from pure milk or cream, salt and harmless coloring matter.”

Also section 4 of the act of March 20,1884', entitled “an act to provide against the adulteration of food and drugs,” now section 4200-7, which provides that:

“Every person manufacturing, offering or exposing for sale, or delivering to a purchaser any drug or article of food included in the provisions of this act, shall furnish to any person interested or demanding tlie same, who shall apply to him for the purpose, and shall tender him the value of the same, a sample sufficient for the analysis of any such drug or article of food which is in his possession.”

It is not intended here to enter into a general dissertation respecting the origin, or method of manufacture, of oleomargarine, or its usefulness or healthfulness, when manufactured of pure and clean materials and in a cleanly and wholesome manner. It is sufficient to say that it is not, within the meaning of these acts, butter, Avhen made in any manner and of any ingredients; that in its natural state it is nearly Avhite in color, while butter in its natural state is generally (although not always) yelloAV, but oleomargarine when colored can be made and is made to so nearly resemble butter as to be easily, and when not distinctly marked, usually, mistaken for it, and that it may be and often is manufactured from such material and in such manner as to be deleterious to health. With this general statement we proceed to consider seriatim the objections and defenses before stated.

The constitutionality of the several acts. What is their purpose and scope? At the outset it should be understood that the statutes do not undertake to prohibit the manufacture or sale of oleomargarine; on the other hand their expressed purpose, gathered from text and title as well, is to regulate its manufacture and sale. In substance they provide that no one shall manufacture for sale any article in imitation of butter, or any compound or substance or any human food in imitation or semblance of natural butter which is not pure butter; that no one shall manufacture or offer or expose to sale any oleomargarine which contains any coloring matter; that no one shall sell any substance purporting, appearing or represented to be butter or having a semblance of butter, unless it be under its true name and with proper mark designating such name, and that all persons dealing in food shall, upon proper application and tender of price, furnish a sample suitable for analysis. Construed with that part of section 2 of the act of March 7, 1890, which provides that oleomargarine may be manufactured “in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from any coloring matter or other ingredient, causing it to look like, or appear to be butter,” it becomes entirely manifest that this legislation is regulation, not prohibition. So that we may leave out of consideration that portion of the argument which seeks to establish on the one hand, and deny on the other, a right in the state to directly prohibit its sale or legislate so as to reach that result by indirection. The question, therefore, is, do the sections of the statute quoted, or any of them, violate our bill of rights which guarantees the right of acquiring and protecting property; or do they in any way violate the constitution as being subversive of the constitutional right to liberty and the enjoyment of property? In other words, is it within the legislative competency to establish regulation for the prevention of fraud and deceit in the sale of articles of food?

We are of opinion that the question is not an open one in Ohio. This court has held again and again that the police power of the state is properly exercised in the protection of the people in all matters concerning their health, and that it is within the scope of this power to regulate the manufacture and sale of articles of food even though the right to so manufacture and sell is a natural right guaranteed by the constitution. Conceding that where the pursuit rests upon natural right, and the product is not harmful, this power may not be exercised in a way which will result practically in inhibition, though under the guise of regulation, and in fostering the interests of a rival product; yet, where the manufacture is conducted in such way as is calculated to deceive, lead the buyer to suppose lie is purchasing an article of food which is everywhere recognized as wholesome, and especially where the article sought to he regulated may easily be manufactured so as to be harmful, and thus result in fraud upon and injury to the public, the police power is properly exercised in the regulation of the manufacture and sale of such article by such requirements as will tend to insure the public against fraud and injury. Its proper disposition is not forbidden. As stated in Jordan v. Overseers, infra, the owner “has power to mortgage the property, or give direction to his labors at his pleasure, subject only to the paramount claims of society, which require that his enjoyment may be modified by the exigencies of the community to which he belongs and regulated by laws which render it subservient to the general welfare.” These several statutes, framed to accomplish this end, entail no particular hardship, are reasonable in their requirements and do not contravene any section of the constitution. Nor is there any question whatever in regard to the power of the state to compel a sample for analysis of any article of food. It would be a waste of space to argue the matter. We hold that in that particular also the statute is reasonable and just. Jordan v. Overseers, 4 Ohio, 295; The State v. Ruedy, 57 Ohio St., 224. Other authorities covering the question are abundant, but it is not necessary to refer to them here. They will be found cited in the briefs of counsel. However, we call attention to a recent utterance of the supreme court of the United States, in Gundling v. Chicago, which involved the right of the city to forbid the sale of cigarettes without a license, opinion by Mr. Justice Peckham:

‘Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and Avhat such regulations shall be and to what particular trade, business or occupation they shall apply, are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of citizens are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without duo process of law, they do not extend beyond the power of the state to pass, and they form no subject for federal interference.

“It is not a valid objection to the ordinance that it partakes of both the character of a regulation and also that of an excise or privilege tax. * * * So long as the state law authorizes both regulation and taxation it is enough, and the enforcement of the ordinance violates no provision of the federal constitution?”

[/The remedy by criminal prosecution. It is enough to say of this objection that the remedy is not adequate. The object of the statute is to protect the public. In the nature of things, a small fine is not a sufficient deterrent to accomplish the desired end, especially in the case of a company possessed of ample means and conducting a large business. The difference between the price at which butter may be manufactured and sold and that at which oleomargarine may be afforded, is so large that the temptation to impose upon the public is too great to be resisted. . In addition to this there are practical difficulties in obtaining convictions which the experience of the dairy and food commissioner, as shown by his report, a public document, fully attests. Rex. v. Ry. Co., 2 B. & Ald., 646; People ex rel. v. Bd. of State Auditors, 42 Mich., 422.

The right to manufacture and sell oleomargarine is not a franchise, and hence the proceeding of quo warranto not a proper remedy. It would seem a sufficient answer to this proposition to say that if it be true, then the defendant has no franchise whatever. • Its charter, the certificate of the secretary of state, gives it “the right, privilege and franchise of manufacturing, selling and dealing in oleomargarine,” etc., etc. This authority carries the implication that the business must be conducted in conformity to the laws of the state. It could not have been the, intent of the general assembly, in enacting laws permitting the formation of corporations, to give them power to override the state, although the conduct of the officers of the defendant would seem to imply that they have entertained a different opinion. The time has not yet arrived when the created is greater than the creator, and it still remains the duty of the courts to perform their office in the enforcement of the laws, no matter how ingenious the pretexts for their violation may be, nor the power of the violators in the commercial world.

In order to avoid misunderstanding it may be well to here repeat what substantially appears elsewhere, that there is no inhibition, under the laws of Ohio, of the manufacture or sale of oleomargarine. The requisite simply is that it shall purport to be what it really is, and shall not be so manufactured and put up as to deceive the consumer. Section 4200-14 (Bates) distinctly provides “that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine, in a separate and distinct form, and in such manner as will advise the consumer of its real character.” * * *

In the present case the acts of the defendant have been persistent, defiant and flagrant, and no other course is left to the court than to enter a judgment of ouster and to appoint trustees to wind up the business of the concern.

Judgment accordingly.