author: Wanamaker, J. Newman, J., Jones, J.,

text:
    The Mahoning Valley Railway Co. v. Santoro, Admr.

      Constitutional law — Reversals on weight of evidence — Section-11377, General Code, constitutional — And applies to pending and future cases, when — Rules of constitutional construction— Effect of changing name of court.

    1. The constitution of 1912, by its schedule, expressly saves '“all laws then in force, not inconsistent therewith.”
    2. Before a statute can fall by reason of such inconsistency the repugnancy must be necessary and obvious. If by any fair course of reasoning the statute and constitution can be reconciled, the statute must stand. (Following Cass v. Dillon, 2 Ohio St., G07.)
    3. Section 11577, General Code, is by these tests reconcilable with the several amendments of the constitution adopted in 1912, and is applicable not only to cases pending on the first of January, 1913, but to all other cases, until said statute shall be repealed.
    4. A mere change of the name of a court does not change the court, where the clear and manifest constitutional purpose is to the contrary.
    (No. 14804
    Decided November 16, 1915.)
    Error to the Court of Appeals of Mahoning county.
    On the 6th day of December, 1909, the original action was brought in the court of common pleas of Mahoning county to recover for wrongful death.
    At the May term, 1911, the action was tried in the court of common pleas and the jury disagreed.
    At the January term, 1912, the action was again tried and the jury returned a verdict in favor of the plaintiff for $2,738. Motion for a new trial was overruled and final judgment rendered on the verdict.

      At the October term, 1912, of the circuit court of said county this judgment was reversed on the ground that the verdict of the jury and judgment of the court rendered thereon were clearly and manifestly against the weight of the evidence, and in February, 1913, the cause was remanded to the court of common pleas for a new trial, so that the case was pending in the. circuit court, later the court of appeals, on January 1, 1913.
    At the September term, 1913, of the common pleas court the original action was again tried and the jury disagreed and were discharged.
    At the January term, 1914, the same case was tried for the fourth time by the court of common pleas. On this trial the jury returned a verdict in favor of the plaintiff for $4,500. Motion for a new trial was overruled and .error again prosecuted to the court of appeals.
    One of the grounds of error complained of in the court of appeals was that the verdict and judgment of the court of common pleas were manifestly against the weight of the evidence.
    The court of appeals, in considering this assignment of error, to-wit, that the verdict and judgment of the court of common pleas were manifestly against the weight of the evidence, held that it was wholly without jurisdiction to hear and determine that question by reason of Section 11577, General Code, and therefore affirmed the judgment of the court of common pleas. It is now claimed that there was error in the judgment of the court of appeals in refusing to weigh the evidence presented in the court of common pleas by the record below.

      Messrs. Arrel, Wilson, Harrington & DeFord, for plaintiff in error.

      Mr. William R. Stezvart, for defendant in error.
   Wanamaker, J.

The questions involved in this case pivot on Section 11577, General Code, which reads as follows:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

The first contention made by plaintiff in error is that this statute is repealed by force of the new constitution, especially judicial Article IV, Section 6.

To be in clear conflict with any provision of the constitution that clear conflict must be between the statute and some specific provision of the constitution. It is not enough that there be a conflict between said statute and the general spirit of the constitution. Clearly the only language of the judicial article that in anywise affects or relates to matter akin to the statute in question, is the following from Section 6, Article IV:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law, and judgments of the courts of appeals shall be final in all cases, except * * * No judgment of a court of common pleas, a superior court or other court of record shall be reversed except by the concurrence of all the judges of the court of appeals on the weight of the evidence, and by a majority of such court of appeals upon other questions.”

We can be much aided in determining this question if we will clearly keep in mind the distinction between .jurisdiction and practice or procedure.

“Jurisdiction has been defined as: The power to hear and determine a cause; * * * the authority by which judicial officers take cognizance of and decide them; * * * the power of a court or a judge to entertain an action, petition, or other proceeding; * * * a power constitutionally conferred upon a judge or magistrate to take cognizance of and determine causes according to law, and to carry his sentence into execution.” 11 Cyc., 659 et seq.

While practice or procedure is: “The mode of proceeding by which a legal right is enforced; that which regulates the formal steps in an action or other judicial proceeding; the course of procedure in courts; the form, manner, and order in which proceedings have been and are accustomed to be had; the form, manner, and order of conducting and carrying on suits or prosecutions in the courts through their various stages, according to the principles of law, and the rules laid down by the respective courts.” 31 Cyc., 1153.

From the above it is obvious that jurisdiction relates to the forum, the court or judge that may hear and determine a legal cause or controversy, while practice or procedure relates to the form or manner of conducting the suit.

This court has held in the case of The Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, that the jurisdiction of the court of appeals is conferred by the constitution, but it has not held that the practice or procedure under such jurisdiction is conferred and prescribed by the constitution, except in certain specific cases where the constitution has expressly and specifically so provided. Under the old constitution the jurisdiction of the appellate court rested in the discretion of the general assembly; also the practice and procedure under such jurisdiction rested in the discretion of the general assembly. The new constitution changed the former by removing it generally from the general assembly to the constitution. It did not, however, change the latter, to-wit, the practice and procedure, except in certain specific cases.

For more than seven years Section 11577, General Code, had been a part of the practice and procedure of our Ohio courts, and there is nothing whatsoever in the new constitution that undertakes to withdraw generally from the general assembly the power and right to legislate upon matters that are peculiarly and exclusively questions of practice and procedure.

Indeed, to do so would require almost a volume of the constitution to take the place of the statutes that deal wholly with matters of this nature.

There are exceptions to this general rule, one of which appears in the language of the constitution last quoted, which was evidently intended to modify the rule of practice occurring in old Section 1515, General Code, which read:

“A majority of the judges of the circuit court, competent to sit, shall be necessary to form a quorum, or to make or render any order, judgment, or decree,” etc.

The last sentence of the judicial article above quoted is clearly in conflict with said Section 1515, General Code, and repeals that section so far as it relates to a judgment or decree on the weight of the evidence. But Section 11577, General Code, the statute in question, does not undertake to fix the number of judges for a quorum to enter any judgment by any court. Its sole and éxclusive purpose is to limit the number of reversals on the weight of the evidence by the same reviewing court.

But it is urged that the language “to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record,” etc., is ad infinitum, without limit or restriction, and that, therefore, the legislature is powerless to limit the number of reviews, reversals and modifications.

Now, it would hardly be claimed that Section 11576, General Code, providing the grounds upon which a new trial may be granted, relates to a matter of jurisdiction. Upon the contrary, it clearly relates to a matter of practice and procedure, and one of the grounds therein specified for the granting of a new trial is “that the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law,” which in effect is a verdict against the weight of the evidence, as it is sometimes paraphrased.

Now, the general schedule of the constitution, adopted by the people at the same time as the various amendments, contains this language:

“The several amendments passed and submitted by this convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith shall continue in force until amended or repealed.”

This schedule bears a striking resemblance to the schedule attached to our former constitution, adopted in 1851.

At an early date that provision was before the supreme court of Ohio for interpretation on the question as to whether or not certain statutes were or were not repealed by the new constitution.

In Ohio, ex rel. Evans, v. Dudley, 1 Ohio St., 437, Judge Ranney, speaking for the court, used this language:

“In short, their position is, that the law erecting the county is inconsistent with the present constitution, and was repealed by it when it took effect. If such inconsistency is found to exist, after a fair and honest effort to reconcile them, it cannot be doubtful which must give way, and the conclusion contended for by the relator would inevitably follow.

“The rule by which we should be guided in pursuing this inquiry is well settled. As repeals by implication are not favored, the repugnancy between the provisions of two statutes must be clear, and so contrary to each other that they cannot be reconciled, in order to make the latter operate a repeal of the former. This rule is the result of a long course of decisions, and we know of no reason why it does not equally apply, when the repugnancy is alleged to exist, between a constitutional provision and a legislative enactment. With this principle in view, we proceed to the inquiry, Does such necessary and obvious repugnancy exist between the law creating this county and the constitution ?”

Judge Thurman, in language most clear and logic most conclusive, and unmatched as a jurist in both, approves and confirms this test of Judge Ranney’s, in the celebrated case of Cass v. Dillon, 2 Ohio St., 607. A paragraph of the syllabus, most applicable here, reads:

“The repugnancy which must cause the law to fall, must be necessary and obvious; if by any fair course of reasoning, the law and the constitution can be reconciled, the law must stand.” .

Judge Thurman, in his opinion in the Cass v. Dillon case, supra, also uses this language:

“The constitution does expressly save all lazvs not inconsistent zvith it.”

That was true under the constitution of 1851 and is likewise true under the constitution of 1912.

We now come to the question as to whether or not the statute is “inconsistent” with the new constitution as determined by the foregoing tests announced by Judges Ranney and Thurman.

In what respect does the constitutional provision above cited clearly conflict with said statute ?

The constitutional provision merely declares that all three judges of the court of appeals must concur before they are warranted to reverse “on the weight of the evidence.” The statute in question says nothing about the number of judges necessary to concur.

The constitutional provision above quoted is clearly in conflict with said Section 1515, General Code, and repeals that section so far as it relates to a judgment or decree on the weight of the evidence, but Section 11577, General Code, does not undertake to fix the number of judges for a quorum to enter any judgment by any court.

The sole and exclusive purpose of Section 11577 is to limit the number of reversals on the weight of the evidence by the same reviewing court.

Clearly there is no conflict between the number of judges who must concur, as provided in the constitution, and the number of times they may so concur, as provided in the statute.

By the constitution it is said three must concur before you can reverse on the weight of the evidence. By the statute it is provided that you can thus reverse on the weight of the evidence but once. In this view of the case the constitutional provision and the statutory section are not only fairly reconcilable by a fair course of reasoning, but on the contrary there is no semblance of conflict or repugnancy between thém.

But even were this course of reasoning absolutely fatal to said section of the statute as to cases generally, as to the case at bar there is an additional and unanswerable reason why the section is preserved. A special provision, not in a schedule but in the very judicial article itself, expressly saves the statute, to-wit, Article IV, Section 6:

“The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as now provided by lazo ”

That is, as to pending cases on January 1, 1913, old Section 1515, General Code, provided that two judges should be a quorum to render any order, judgment or decree, and therefore two judges could reverse on the weight of the evidence. But as to cases not so pending the concurrence of three judges became necessary, by the constitutional provision, to reverse on the weight of the evidence.

The words “proceed to judgment” are very comprehensive and clearly include final judgment, not only “in the court of appeals,” where the case at bar was pending on January 1, 1913, but, as clearly set forth in the language of the constitution above quoted, “in the supreme court” as well. As to the number of reversals on the weight of the evidence the statute in question was in existence and- had been for more than seven years. Our various courts were quite familiar with it and applied it frequently and effectually in the interest of justice, being the spirit in which it was enacted. It was then a part of our law of procedure, and the language of this last constitutional provision is most clear that it was the intention of the constitution-makers to save these kindred statutes as a part of our law.

But above and beyond the application of these rules of interpretation and "construction, it must be apparent to the student of political and judicial development that one great purpose that the constitutional convention of 1912 had in mind was judicial reform along the line of one fair trial and one thorough review and no more, to the end that justice should be speedily, economically and substantially administered.

The constitutional convention obviously was not seeking to enlarge the right of reviewing courts upon the verdicts of juries, or to increase the number of trials, appeals and reviews under the then practice of the courts, but on the contrary to limit and restrain the number of trials and the power of review by -virtue of the new constitutional provisions in that behalf..

If the doctrine contended for by plaintiff in error as to the section'in question shall prevail and that section be repealed, the people of the state of Ohio are in a worse plight as to the administration of justice through litigation than they were under the old constitution, for if this statute is now repealed, the court of appeals may reverse an indefinite number of times on the weight of the evidence, litigation may/ be prolonged interminably and the people are no/ only without any remedy now, but the general assembly of Ohio would be powerless to enact such a statute, because it would conflict with the new constitution by the same process of reasoning- as is contended for in the case at bar.

We hold that the language of the judicial article in question is a limitation on, rather than an extension of, the statute, Section 11577, General Code; that the two are in entire harmony in so far as their cooperation is concerned; that the work of both will expedite and economize the work of our courts and prevent the extravagant farce of interminable, unending- litigation, which usually results in favor of the longest purse.

Again, it is urged that even if the statute be unrepealed the language thereof, to-wit, “the same court,” prevents the application of the statute in the case at bar by reason of the fact that the first reversal on the weight of the evidence was by the circuit court and the second reversal was asked of the court of appeals, and that, therefore, the statute has no application in the instant case.

Section 6, Article IWoithe Constitution of 1912, so far as applicable here to this discussion, reads as follows:

“The judges of the circuit courts now residing-in their respective districts shall be the judges of the respective courts of appeals in such districts and perform the duties thereof until the expiration of their respective terms of office. * * * The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit courts shall proceed to judgment \and be determined by the respective courts of appekls, and the supreme court, as now provided by law, arid cases brought into said courts of appeals after the taking effect hereof shall be subject to the provisions hereof, and the circuit courts shall be merged into, and their work continued by, the courts of appeals.”

This court, in The State, ex rel. Chittenden, v. Harmon, Governor, 87 Ohio St., 364, reviewed Section 6 of Article IV of the Constitution, touching the issue of identity of courts, and held that said section, “although substituting the court of appeals for the circuit court, recognizes and preserves the identity of those courts to the extent that one who prior to that date had been elected a judge of the circuit court for a term of six years, beginning February 9, 1913, is entitled to serve as a judge of the, court of appeals for the term to which he had been so elected.”

True, Shauck, C. J., rendering the opinion, uses the following language cited in plaintiff in error’s brief:

“It is true that the language employed to confer appellate jurisdiction on the court of appeals differs widely from that previously employed by the statute to confer such jurisdiction upon the circuit court, but whether any substantial change in that jurisdiction was intended will be for determination in cases which may present the question.”

But later in the same opinion this language appears :

“The comparison seems to justify the statement that no change whatever is effected which required a change in the constitution except in the name of the court and the addition of prohibition to the subjects of its original jurisdiction.”

The language of the constitutional provision, its spirit and its very evident purpose all combine in favor of the conclusion that we have a constitutional identity of courts in the merger of the circuit court into the court of appeals, the latter appearing as the successor of the former, the only difference being a mere change of name, each being the court of review upon the judgment of the court of common pleas. To hold otherwise would be like distinguishing tweedledee from tweedledum.

In this view of the case, the judgment of the court of appeals should be and therefore is affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue and Matthias, JJ., concur. •

Newman, J.,

dissenting. I do not concur in the third proposition of the syllabus or in the judgment in this case.

In 1912 defendant in error recovered a verdict and judgment in the court of common pleas. Error was prosecuted to the circuit court and at the October, 1912, term of that court the judgment of the court of common pleas was reversed upon the ground that the verdict and judgment were clearly and manifestly against the weight of the evidence. The mandate remanding the case to the court of common pleas, however, was not issued by the then court of appeals until February 20, 1913, so that the case was pending in the circuit court on the first day of January, 1913, and error could have been prosecuted to this court under the provisions of Section 6, Article IV of the Constitution, adopted September 3, 1912, effective January 1, 1913. Akron v. Roth, 88 Ohio St., 456. Instead, the case was remanded to the court of common pleas and again tried to a jury and resulted in a verdict and judgment in favor of defendant in error. From this judgment error was prosecuted to the court of appeals, the petition in error being filed June 7, 1914. It was a case brought into the court of appeals, within the meaning of Section 6, Article IV, after that section became effective. The fact that the controversy had been presented to the circuit court upon a former petition in error, filed prior to the. taking effect of Section 6, did not exempt it from the provisions of the section relating to cases brought into the court of appeals after the section became effective. The constitutional provision is that all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as then provided by law, and cases brought into the courts of appeals after the taking effect of the section are subject to the provisions thereof. Under this provision, as we have stated, when this matter was in the circuit court in 1913, it could have proceeded to judgment in that court and in this court according to the provisions of law in force when the constitutional amendments went into effect. But when the case was remanded to the court of common pleas and another trial had and a judgment rendered and error was prosecuted from that judgment to the court of appeals, the case was subject to the provisions of Section 6 and was under the jurisdiction of the court of appeals as conferred by that section. The judgment under review here was rendered upon the petition in error filed June 7, 1914, in a new proceeding in error coming into the court of appeals after Section 6 became effective, and this court is entertaining jurisdiction not because it was a pending case but because a constitutional question is involved. The court of appeals affirmed the judgment of the court of common pleas upon the ground that the circuit court having, on October 24, 1912,. reversed the judgment of the court of 'common pleas upon the ground that the verdict and judgment were against the weight of the evidence, it, the court of appeals, under the terms and provisions of Section 11577, General Code, was wholly without jurisdiction to review the evidence presented in the record for the purpose of determining the weight thereof.

The question presented is, Does Section 11577, which -provides “The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case,” conflict with Section 6, Article IV of the Constitution as amended ?

The general schedule of the constitution provides that all laws in force when the amendments took effect and not inconsistent therewith shall continue in force until amended or repealed, and we subscribe to the rule announced in the syllabus here, following Cass v. Dillon, 2 Ohio St., 607, that before a statute can fall by reason of'such inconsistency the repugnancy must be necessary and obvious, and if by any fair course of reasoning the statute and constitution can be reconciled, the statute must stand.

In The Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, it was held that Section 6, Article IV of the Constitution, confers jurisdiction upon the court of appeals to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district, and the general assembly has no power to enlarge or limit the jurisdiction- conferred by the constitution of the state, but may provide by law for the method of exercising that jurisdiction. In the majority opinion here jurisdiction is .defined. We adopt that definition. It is the power to hear and determine causes; the authority by which judicial officers take cognizance of and decide them; the power of a court or judge to entertain an action, petition or other proceeding; the power constitutionally conferred upon judges or magistrates to take cognizance of and determine causes according to law and carry their sentence into execution.

As we view it, Section 11577 is aimed directly at the very power of the court. It certainly does not relate to practice or procedure, as those terms are defined in the majority opinion, or prescribe a mode of proceeding or regulate the steps in an action, but it. attempts to restrict and limit the power of the court of appeals in reviewing judgments, which the general assembly cannot do, as this court held in The Cincinnati Polyclinic v. Balch, supra. It is provided in Section 6 that no judgment of a court of common pleas shall be reversed except by the concurrence of all the judges of the court of appeals on the weight of the evidence. In this provision the jurisdiction and power of the court of appeals to reverse upon the weight of the evidence are recognized, and the only limitation placed upon the exercise of that power is that all the judges must concur.

It is suggested that the one great purpose of the constitutional convention of 1912 was to have one trial and one review. This, we think, refers to the number of reviewing courts. The constitutional convention intended to and did do away with a review by.this court in nearly every case. True, when a judgment of the court of common pleas is affirmed, that is the end of the litigation, except in the cases coming expressly within the jurisdiction of this court. But it certainly cannot be contended seriously that where a judgment is reversed by the court of appeals and the cause remanded, there can be no other review of the matter by the court of appeals. The framers of the constitution never intended that there should be one review in the literal sense of the 'word. A case begun in the common pleas may reach the court of appeals as many times. as error has intervened in the trial of the case.

If the statute we are considering is to be treated as a rule of procedure, then the general assembly could enact a law upon that theory providing that there can be no reversal upon the weight of the evidence. It could go farther and provide that there can be no reversal on the ground that there is error in the charge of the court, and so on, until there would remain no ground upon which a reversal could be had, and the rule, carried to its logical end, would result in the general assembly not only limiting the jurisdiction of the court of appeals in the reversal of judgments but abrogating it entirely.

We think, therefore, that Section 11577, which limits the power of the court of appeals in reviewing the 'judgments of the common pleas and superior courts, is irreconcilably in conflict with the provisions of the constitution.

Jones, J.,

dissenting. I concur in the judgment and in the first, second and fourth propositions of. the syllabus, for the reason that this case was a “pending case” in the court of appeals on January 1, 1913, to be thereafter determined under the then existing laws.

I dissent from the latter part of the third proposition of the syllabus. Section 6, Article IV of the Constitution,, embraces the plenary jurisdiction of the courts of appeals, both original and appellate, and included in that section is the limitation on its jurisdiction or power to reverse on the weight of the evidence. This constitutional provision, ex proprio vigore, definitely seized the subject — weight of the evidence — from the realm of statutory jurisdiction and legislative control, and incorporated it in the constitutional section dealing with the jurisdiction of the courts of appeals. This appellate ■ jurisdiction or power of reversal is unqualified, save by the single, specific limitation that a reversal on the weight of the evidence must be by a concurrence of all the judges of the court of appeáls. The statute in question, Section 11577, General Code, affecting the power of the court to render a judgment, is jurisdictional and not procedural, and became inoperative by the adoption of the section of the constitution above referred to.


source: Caselaw Access Project

author: Newman, J.

license: Public Domain

text:
    The State of Ohio v. Bayer.

      Intoxicating liquors — Shipments into dry territory — False or fictitious name or title — Section 13216, General Code — Venue— Offense committed where liquor bought and delivered to carrier, when.

    The word “ship,” as used in Section 13216, General Code, means to deliver to a common carrier for transportation; and where intoxicating liquor is bought and paid for in one county, with instructions to the seller by the buyer to ship by express to him in another county, if it be shipped under a false or fictitious name or title, the offense under Section 13216 is complete in the county where the liquor is bought and delivered to the express company, and the shipper must be prosecuted there.
    (No. 14796
    Decided November 16, 1915.)
    Error to the Court of Appeals of Union county.
    The facts are stated in the opinion.

      Mr. Milton Haines, prosecuting attorney; Mr. John H. Willis and Mr. James A. White, for plaintiff in error.

      Mr. O. IT. Mosier and Mr. Timothy S. Hogan, for defendant in error.
   Newman, J.

The prosecuting attorney of Union county filed an information in the probate court of that county based upon an affidavit filed by one W. B. Mathews, charging the defendant, Harry Bayer, with the violation of Section 13216, General Code, in unlawfully and knowingly shipping and transporting into the village of Marysville intoxicating liquor under a false and fictitious name, to-wit, one paper box containing eight pint bottles of whiskey, said box marked and labeled “glass.” The case was heard in the probate court and the defendant was found guilty and was sentenced to pay a fine of $200 and costs. He prosecuted error to the court of appeals and the judgment of the probate -court was reversed and the defendant discharged for the reason, as shown by the journal entry, that the probate court erred in overruling the motion for a new trial on the ground that the judgment was contrary to law.

Counsel for defendant in error suggest several reasons why the judgment of reversal of the court of appeals should be affirmed. It is insisted if there was any violation of Section 13216, under which the prosecution was had, the offense was committed in Franklin county, Ohio, and the probate court of Union county had no jurisdiction to try the defendant.

The only evidence offered upon the trial of the case in the probate court was that offered' by the state and is contained in the bill of exceptions filed in this court. One M. C. Bump, an employe of W. B. Mathews, a secret-service officer for Union county, purchased from The Golden Hill Distilling Company, at its place of business in the city of Columbus, with money furnished for that purpose by Mathews, a gallon of whiskey, to be shipped to him, tBump, at Marysville, Ohio. Bump paid for the whiskey, to one of the clerks in the employ of the company, the sum of $2, and ordered it shipped in pint bottles, by express, the express charges to be paid by Bump at Marysville. The box containing the whiskey was prepared for shipment in the office of The Golden Hill Distilling Company and turned over by that company to the American Express Company with this designation on the box: “M. C. Bump, Marysville, Ohio, G. H. D. Co., 139 E. Town St., Columbus, Ohio. ‘Glass, handle with care/ ” Upon receipt by the express company, the the agent of that company pasted on the package a carbon copy of the waybill, as follows: “5199, July 18, 1914, Marysville, M. Bump. Liq. 18 G. H. D,” The package was carried to its destination by the express company and upon the order of Bump was delivered to Mathews, who paid the express charges and thereupon took the package to the office of the prosecuting attorney of Union county. There is evidence tending to show that at the time of this transaction Harry Bayer was the president, treasurer, chairman of the board of directors, and manager of The Golden Hill Distilling Company, and was in charge and control of the business. Plaintiff offered in evidence a certified copy of the journal entry of the court of common pleas of Union county, showing the result of the election on local option in that county and that Marysville was in dry territory, which was objected to by the defendant and the same was withdrawn.

Section 13636, General Code, provides that all criminal cases shall be tried in the county where’ the offense was committed. The question for determination is whether the defendant committed an offense in violation of Section 13216 in Union county. In that section it is provided: “No railroad or common carrier, or agent thereof, dray-man or other person, corporation or firm, shall ship, receive, transport, carry or handle intoxicating liquor under a false or fictitious name or title.” It is to be observed that this statute makes it an offense to ship. It makes it an offense to receive. It makes it an offense to transport; also to carry or to handle. The one who transports is the express company or the carrier which carries the goods. It is not claimed that the defendant committed an offense as the transporter of the goods. But it is suggested by counsel for plaintiff in error that the person who ships the intoxicating liquor under a false or fictitious name or title is far more guilty than the man who transports, carries, handles or receives the same, and it is urged that the prosecution may be had anywhere along the line, including the county where it is received. In view of the language used in the statute, it seems .to us ft was not intended that the act of shipment should include the whole movement of the goods from the• time they leave the hands of the consignor until they reach the consignee. The legislature has treated the several acts which go to make up the entire movement separate offenses. The one who ships may be punished, the one who receives may be punished, and likewise the one who transports or carries or handles the goods. The word “ship” should be taken as used in its commercial sense, which is the delivery of goods to a common carrier for transportation, whether by land or water or both. It does not include the subsequent carriage of the goods. Therefore, when the goods in question \yere delivered to the express company in the city of Columbus, the shipment, as contemplated by the statute under consideration, was complete. If any act was committed by the defendant in error as a shipper, in violation of Section 13216, it was committed in Franklin county and the venue should have been laid there.

But it is claimed by counsel that .by the terms of the sale in the instant case the express company was the agent of the defendant. To determine this we are required to examine certain provisions of the uniform sales act passed by the general assembly of this state in 1908 and carried into the General Code, Sections 8381 to 8456, inclusive. This act establishes certain rules of law which apply to contracts to sell and to sales of goods and which must govern any case coming within its provisions. In the first paragraph of Section 8426 it is provided: “When in pursuance of a contract to sell or a sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer, except as provided for in section eighty-three hundred and ninety-nine, rule 5, unless' a contrary intent appears.” In support of their contention counsel rely upon this rule 5 of Section 8399, which is a limitation upon the provisions contained in Section 8426. It reads as follows: “If a contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.” The contract between The Golden Hill Distilling Company and Bump did not require the former to deliver the goods to the latter, or at a particular place, nor did it require the seller to pay the freight or cost of transportation, and the rule therefore does not apply.

We are of the opinion that the transaction in question comes clearly within the provisions of Section 8426, which we have quoted. The Golden Hill Distilling Company was authorized to send or ship the goods to Bump by express. The express company was the agent of Bump and delivery to it was, in legal contemplation, a delivery to him. Nothing further remained to be done on the part of the seller. It had no control or dominion over the goods. The right of stoppage in transitu did not exist, for the goods had been paid for. Counsel quote paragraphs two and three of Section 8426. These impose upon the seller the duty of providing for the safe carriage of the goods .and fix the liability in the event the goods are lost or damaged in the course of transit, etc., and also provide for insurance under certain conditions. These provisions, as we view them, are wholly inapplicable to the case under consideration. Counsel cite Section 6098, which is as follows: “Sales of intoxicating liquor to be paid for on delivery, commonly called C. O. D. shipments, shall be held to be made at the place of destination, or where the money is paid or the goods delivered.” This section is not in point, for the shipment in question was not a C. O. D. shipment.

We conclude then that the transaction, so far as the defendant was concerned either as a shipper or as a seller of the goods, began and ended in Franklin county, and the venue was. improperly laid in Union county.

In view of our holding on the question of venue it becomes unnecessary to consider the' other grounds suggested by counsel in support of the judgment of the court' of appeals.

Judgment affirmed.

Nichols, C. J., Johnson, Donai-iue, Wanamaker, Jones and Matthias, JJ., concur.


author: Nichols, C. J.

text:
    The State of Ohio v. Lathrop.

      Constitutional law — Date legislative acts effective — Approval by governor — Filing with secretary. of slate — Sections ic, id, and 16, Article II, Constitution, igi2 — Illegal sale of drugs — Section 12672, General Code (103 O. L., 340, 505).

    Construing Section lc of Article II with Section 16 of Article II of the Constitution, in so far as both sections relate to the time from which an act of the general assembly shall operate, laws providing for tax levies, appropriations for current expenses of the state .government and state institutions, and emergency laws, as defined in Section Id of Article II of the Constitution, go into immediate effect when approved by the governor. All other acts go into effect ninety days after the same have been filed with the secretary of state, regardless of the date of approval by the governor.
    (No. 14903
    Decided November 16, 1915.)
    Error to the Court of. Appeals of Lucas county.
    The facts are stated in the opinion.

      Mr. John C. D’Alton, prosecuting attorney, and Messrs. Kohn, Northup, Ritter & McMahon, for plaintiff in error.

      Messrs. Ragan & Lynch, for defendant in error.
   Nichols, C. J.

Defendant in error, James H. Lathrop, was convicted in the Lucas county probate court for selling a preparation of morphine in violation of the provisions of Section 12672, General Code, as amended in 103 Ohio Laws, 505.

Judgment of the probate court was affirmed by the court of common pleas, and this judgment of affirmance was reversed by the court of appeals on the sole ground that Section 12672, found in 103 Ohio Laws, page 505, was repealed by 103 Ohio Laws, page 340.

This judgment of reversal is now in the supreme court for review.

It appears that the amendment to the section in question found in 103 Ohio Laws, page 340, was enacted into law by the general assembly on the 15th of April, 1913; and two days later, on the 17th of April, the general assembly again ámended the same section by adding opium and its derivatives to the list of proscribed drugs. The disputed question arises over the fact that the governor, to whom, under the constitution, all bills must be transmitted after their passage by the general assembly — inadvertently, we may safely assume — signed the bill later passed first; that is, he signed the act of April 17 on May 2 and that of April 15 on May 3.

The bill signed on the 3d of May was the so-called agricultural commission enactment, amending many sections of the General Code, as well as enacting several supplementary sections.

The bill signed on May 2 amended-but one section and in addition repealed Section 12674.

The court of appeals based its decision on the fact that the act signed on the 2d was repealed by the act of the governor in signing the act on the 3d, and counted of no effect the fact that the legislature passed the measure so held to have been repealed two days later than the .measure which the court holds repealed it.

The effect of this decision is that the bill last signed, although first passed, repealed the act first signed, although later passed.

We thus have presented the anomalous situation of the governor being granted an additional power of veto not contemplated by the constitution. He may, if this decision is permitted to stand, by mere order of the time of signing, determine which of two acts relating to the same subject-matter may survive, and, although signing both, may kill the one as effectually as if he had vetoed it; and furthermore— as happened in this instance — may defeat the manifest purpose of the legislature by signing first in order the later expression thereof, and do this, it would appear, without intending to do so, and in effect defeat not only the intention of the legislature, but his own as well.

The anomaly' of the situation is further emphasized by the apparent paradox of the executive killing the bill by approving it, whereas, by vetoing it, it most likely would have survived, for the general assembly would most certainly have repassed the bill by the required constitutional majority, there being no conceivable reason why the unrestricted sale of cocaine and its associated drugs should be forbidden, and opium and its derivatives permitted, and the time necessary to have brought this about would have made the later act the last to go into effect.

The executive should not be permitted to defeat the legislative will except by constitutional methods ■— that is, by the exercise of the veto power. If it were permitted him to do so, grave possibilities of encroachment on the legitimate functions of the general assembly might reasonably be apprehended.

The executive has, under our constitution, no part to play in the legislative field except through the veto. It is not necessary, to give effect to the act of the general assembly, that he even sign a bill; it will become a law just as effectually without his approval as with it. The ten-day period fixed by the constitution for the consideration by the governor of such measures as the general assembly may enact, is not so much for the purpose of gaining his approval as for the determination of whether or not he shall disapprove it.

Section' 1 of Article II of the Constitution of Ohio provides that the legislative power of the state shall be vested in a general assembly consisting of a senate and a house of representatives, the people reserving to themselves the power to propose laws to the general assembly and to adopt or reject them by referendum, and the further power of adopting or rejecting any law passed by the general assembly. If the governor, by mere order of the time of approval of measures passed by the general assembly, can make or unmake laws, then, contrary to the express terms of the constitution, he becomes the lawmaking power and his intention, rather than that of the legislature, governs.

After a bill has been passed by the legislature and the three days for reconsideration have passed, it has no further authority in the premises. It cannot recall the bill from the hands of the governor. If it were the will of the legislature to defeat its former enactment, it can then only act through the instrumentality of another law.

It is perhaps pertinent to this inquiry to observe that the amendment to the section in question, passed on the 15th of April, in nowise changed the subject-matter of the section, but simply substituted the words “agricultural commission” for the words “and the members of the state board of pharmacy,” this being essential on account of the fact that the law took certain functions from the state board of pharmacy and transferred them to the agricultural commission, while the act of April 17 materially changed the substance of the act. And it bears the strongest of internal evidence that it was sought to and did amend the act as passed two days previous, and not old Section 12672, General Code. It would indeed be a strange proceeding to hold that the legislature passed on the 15th of April a law repealing an act which it did not pass until the 17th of the same month, and which, for aught we know, may not at the time have been even introduced in the lawmaking body, for it is by no means rare that a bill is introduced and enacted into law, through suspension of the constitutional requirements, within a period of two days. It is not difficult to understand how this situation developed. The agricultural commission law was long and involved, the other bill was short and confined to but one subject, and the executive, in giving consideration to the two measures thus transmitted to him, would naturally require greater time for the one than the other.

We are not unmindful of the provisions of Section 16 of Article II of the Constitution, requiring that “every bill passed by the general assembly shall, before it becomes a law, be presented to the governor for his approval. If he approves, he shall sign it and thereupon it shall become a law and be filed with the secretary of state,” under the express terms of which the two measures in question became laws of the date of his approval. There is nothing in the record to indicate which of the two acts was first presented to the governor, but it must be presumed in the ordinary course of events that the act first passed was first presented, and, had there been neither approval nor veto, then the act of April 17 would have been the act last to go into effect.

Approval by the executive is unnecessary to give force and effect to a law, since the same section of the constitution provides that if a bill be not returned by the governor within ten days after being presented to him, it shall become a law in like manner as if he had signed it.

We are constrained to hold that the act last actually signed did not operate to repeal the act last passed. We are persuaded that the manifest purpose of the lawmaking power should not be defeated by means wholly beyond its control.

It is the plain duty of the court to give effect, if at all possible, to the latest expression of the legislature on a given subject. And rather than vest the executive with the power of selection, which the constitution neither impliedly nor expressly grants to him — and, indeed, which the constitution in terms, by formal exclusion, denies to him — we hold that the act of April 17, as the later expression of the general assembly, must prevail; and we do this the more readily because thereby the clear intention of both the general assembly and the executive is given effect.

Authority in support of this holding may be found in the case of Southwark Bank v. Commonwealth, 26 Pa. St., 446, wherein it was held:

“1. The general rule is that where two statutes contain repugnant provisions, the one last signed by the governor is a repeal of the one previously signed.

“2. This is so merely because it is presumed to be so intended by the lawmaking power; but where the intention is otherwise, and that intention is apparent from the face of either enactment, the plain meaning of the legislative power thus manifested is the paramount rule of construction.”

The constitution of Pennsylvania on the subject of the governor’s participation in legislation through the exercise of the veto power is substantially that of Ohio. The facts in the Pennsylvania case were in all respects similar to the instant case. The general assembly had passed, on the 9th of March, a certain statute, and five days later, on consideration of the same subject-matter, expressly repealed the law so passed five days previous. The governor, however, as in the instant case, signed the act of March 14 on the 15th of the same month, and the act of March 9 one day later. Nevertheless, the holding there, as indicated by the syllabus, was to the effect that the act last passed, although first signed, was the law of Pennsylvania.

Independent of these considerations the judgment of the court of appeals- must needs be reversed for another reason. An examination of the 1913 Session Laws, Vol, 103, discloses this state of facts:

Agricultural commission act: Passed April IS, 1913; approved May 3, 1913; filed with secretary of state, May 7, 1913.

The other act in question: Passed April 17, 1913; approved May 2, 1913; filed with secretary of state, May 8, 1913.

Thus we find that the act adding morphine and its derivatives to the list of regulated drugs, while later passed and first signed, was filed in the office of the secretary of state one day later than the agricultural commission act.

When, then, under our constitution, does a non-emergency act go into effect?

This question involves a construction of two apparently conflicting sections of the Constitution, that of Section lc of Article II and Section 16 of Article II.

Section 16 of Article II provides that if the I governor approves a bill he shall sign it and there-1 upon it shall become a law. Section lc of Article II provides that “No law passed by the general assembly shall go into effect until ninety days after it shall have been filed by the governor in thel office of the secretary of state, except as herein! provided.”

The “except as herein provided” clause has undoubted reference to the provision in Section Id of Article II, to the effect that laws providing for tax levies, etc., and emergency laws shall go into immediate effect.

Thus we find that under the provisions of Section lc just quoted, the act of April 17, having been filed with the secretary of state one day later than the agricultural commission act, although approved a day before, did not go into effect until ninety days after May 8, and not of the date of its approval by the governor, while under the terms of Section 16, Article II, this same act would become a law immediately upon its being signed by the governor. These two sections of the constitution thus apparently repugnant are by no means hopelessly so. It was' observed by Ranney, J., in the course of his opinion in Hill v. Higdon, 5 Ohio St., 243, 247: “It is our duty to give a construction to the constitution as will make it consistent with itself, and will harmonize and give effect to all its various provisions.” Applying in the instant case this rule of construction, it is found not at all difficult to reconcile these apparently conflicting provisions of the constitution.

They can be reconciled as now to be indicated. There is a class of laws not subject to the ninety-day period. Laws providing for the state levies, appropriations for current expenses of the state government and state institutions and emergency laws, as defined in Section Id of Article II, go into immediate effect by the express language of the Constitution. This, of course, must be understood as meaning that such laws shall go into immediate effect as soon as they shall have been signed by the governor.

Both Section 16, as it now reads, and Section lc of Article II were written into the organic law on the same day, namely September 3, 1912. It cannot be thought for a moment that the framers of those two proposals entertained the notion that such laws as were made subject to the referendum should go into effect immediately upon being signed by the governor, in the face of the prohibitory terms of Section lc.

We can give effect to both sections by holding, as we do, that laws providing for tax levies, appropriations for current expenses of the state government and state institutions and emergency laws, as defined in Section \d of Article II, go into immediate effect when approved by the governor, and that all other acts go into effect ninety days after the same have been filed with the secretary of state, regardless of the date of approval by the governor.

The judgment of the court of appeals is reversed and that of the court of common pleas affirmed.

Judgment reversed.

Johnson, ■ Donai-iue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


author: By the Court.

text:
    The State of Ohio v. Kollar.

      Banks and banking — False statements of solvency, etc. — Section 13383-1, General Code (103 O. L., 469) — Burden of proof— Intent and motive — Charge to jury — Effect of requesting erroneous charge — False financial report.

    (No. 14881
    Decided November 16, 1915.)
    Error to the Court of Appeals of Mahoning county.

      Mr. Edward C. Turner, attorney general, and Mr. A. M. Henderson, prosecuting attorney, for plaintiff in error.

      Mr. E. N. Brown, for defendant in error.
   By the Court.

In a prosecution under that part of the provisions of Section 13383-1, General Code (103 O. L., 469), relating to banking institutions, building and loan associations or trust companies, the burden is upon the state to prove, beyond a reasonable doubt, that the statement, rumor or suggestion, which the indictment charges the defendant with having made, transmitted or circulated, is false.

Under this provision of that section the intent of the accused is not material, but it is made a material element of the further offense defined b}^ this section against any corporation.

If the statement, rumor or suggestion, derogatory to the financial condition, solvency or financial standing of any bank, banking association, building and loan association or trust company doing business in this state, is false, and the accused, directly or indirectly, wilfully and knowingly, made and transmitted it to another, or circulated the same, then he is guilty of the oifense charged. If the statement, rumor or suggestion is true, then he is not guilty of this oifense, regardless of the intent and purpose with which it is made or transmitted to another or circulated.

It is error for the trial court to charge the jury that “If the article was true and was published with good motives, and for justifiable ends, it would be your duty to acquit the defendant.” The court should have charged the jury to acquit the defendant if it found that the statement published is true. Where, however, the defendant requests the court to charge the jury that “If it shall appear to you that the matter charged in the indictment as libelous was true, and was published for good motives and for justifiable ends, it will be your duty to return a verdict of not guilty and acquit the defendant,” and the court gives this charge, either before the argument, as requested, or as a part of the general charge, the accused is not entitled to a reversal of the judgment for this error of the court for which he was responsible. So, where the accused requests the court to charge the jury that “If you find from the evidence that the accused, on September 4th, 1913, made to the state a report or statement of the financial condition of his establishment, which was in fact false or untrue, then I say to you that any comment or criticism of such ■false or untrue statement which tended to expose the falsity or untruthfulness of the same, would not be a libel or within the provision of the law under which this indictment is returned,” and the court did charge the jury that “If the defendant in making his statement, made a false statement, then it wduld give the right to this defendant to comment upon the falsity of the statement,” the defendant cannot now procure a reversal of the judgment because the court, at his request, gave to the jury the erroneous instructions.

The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted.

It follows, therefore, that, for much graver reasons, a litigant cannot be' permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible.

Express malice is no part of the offense charged in this indictment. If the statement is false, wilfully and knowingly made or transmitted to another, or circulated, the law implies malice, but the accused cannot complain that the state was required by the trial court to prove express malice on his part as an essential element of the crime. The error is prejudicial to the state, but not to the accused, for the fact, if it be a fact, that the act was done maliciously does not make it any less a crime.

The judgment of the court of appeals is reversed, and judgment of the court of common pleas affirmed.

Judgment of the court of appeals reversed and that of the court of common pleas affirmed.

Johnson, Donai-iue, Newman, Wanamaicer, Jones and Matthias, JJ., concur.


author: Matthias, J.

text:
    Williams et al. v. Sandles et al.

      Constitutional law — Weights and measures law — Section 6415, General Code (103 O. L., I3g), constitutional — Condemnation and confiscation of false weights and measures — •Section 7965-1, General Code, constitutional.

    1. The authority to prescribe a standard of weights and measures not being vested by the constitution of the United States exclusively in congress, it is within the power of the legislatures of the several states to enact laws fixing and regulating standards of weights and measures in all respects in which congress has not legislated upon the subject. Section 6415, General Code, as amended March 12, 1913 (103 O. L., 139), prescribing the dimensions of the peck and lesser measures, is, therefore, valid.
    2. The provisions of Section 7965-1, General Code, authorizing the condemnation and confiscation of false or fraudulent weighing or measuring devices, are within the police power of the state, and do not contravene either the state or federal constitution.
    (No. 14856
    Decided November 19, 1915.)
    Error to the Court of Appeals of Franklin county.

      This case originated in the court of common pleas of Franklin county, and was taken on appeal to the court of appeals, where the plaintiffs in error, Bert Williams and Charles Goldstein, filed their amended petition and sought to enjoin the state agricultural commission and the local sealer of weights and measures from enforcing the statutes of the state regulating weights and measures and from condemning and confiscating certain measures belonging to plaintiffs and used by them, as dealers in produce in the city of Columbus, in measuring commodities in which they deal. A general demurrer was sustained and the amended petition dismissed. To reverse that judgment this proceeding in error is prosecuted.

      Mr. H. IT. Felsman and Mr. F. S. Monnett, for plaintiffs in error.

      Mr. Edward C. Turner, attorney general; Mr. John G. Price; Mr. William J. Ford, assistant prosecuting attorney, and Mr. John L. Davies, assistant city solicitor, for defendants in error.
   Matthias, J.

The demurrer to the petition presents squarely the questions:

First. Whether the authority to prescribe a standard of weights and measures is vested exclusively in the congress of the United States, and the legislatures of the several states are precluded from the exercise of any such power.

Second. Whether the condemnation and confiscation of measures which do not conform to a lawfully established standard in the manner authorized by Section 7965-1, General Code, is a violation of any provision of the state or federal constitution.

Plaintiffs contend that by reason of the provisions of Section 8 of Article I of the Constitution of the United States, which confers upon congress the “power * * * to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures,” the state is entirely without authority to enact any laws upon that subject. It is to be noted that in the same section in which power is conferred upon congress to fix a standard of weights and measures authority is also granted to coin money and regulate its value. In Section 10 of Article I of the Federal Constitution it is provided that “No state shall * * * coin money,” but nowhere in the constitution is there any provision whatever precluding the state from legislating- on the subject of the standard of weights and measures. Such power is not prohibited by the constitution, and consequently under Article X of the Amendments is reserved to the states.

The authorities are uniform in holding that states are precluded from exercising a power onfy when the power over such subject is in express terms conferred exclusively upon the federal government, or where such grant of authority to the national government is attended by an express prohibition upon its exercise by the state or the exercise thereof by both would be clearly and necessarily contradictory and repugnant. It is quite apparent, therefore', that the power to adopt and prescribe a standard of weights and measures was not conferred by the constitution exclusively upon the congress of the United States, and that it is within the power of the legislatures of the several states to enact laws fixing and regulating standards of weights and measures in all respects in which congress has not legislated upon the subject.

The case of Weaver v. Fegely & Bro., 29 Pa. St., 27, is a leading case upon the subject, and the rule there stated has been adopted and followed without exception. It is there held that “The mere grant in the federal constitution to Congress to regulate weights and measures does not extinguish the right in the states over the same subject, until Congress shall have exercised the power conferred.”

Upon this subject it is stated in Pomeroy on Constitutional Law (10 ed.), Section 410, that “While the power to coin money and regulate its value was thus given exclusively to Congress, the power to fix the standard of weights and measures was left in the hands of the states as well as of the general government. As long as this power remains dormant in the national legislature, the local commonwealths may fully exercise it.”

The power conferred upon congress by the constitution has never been exercised by it in any manner other than by the passage of a permissive statute. Until congress exercises the power conferred upon it and acts authoritatively, it is clear that the several states may for themselves, as indeed they have, adopt standards and regulate weights and measures. In so far as there has been any legislation by congress this state has adopted the standards so fixed. In 1836, in pursuance of an act of congress, the secretary of the treasury furnished a standard half-bushel measure to the states, that being the standard in use by the government in its custom houses. Section 6414 of the General Code of Ohio is merely an adoption in form and dimensions of that standard half-bushel, measure for this state, and Section 6415, General Code, as amended March 12, 1913 (103 O. L., 139), of which the plaintiffs now complain, prescribes the dimensions and capacities of the peck and lesser measures, as to which there has been no legislation whatever, permissive or otherwise, by congress, and no authority has questioned the right of the states to act upon matters of this character in respects which have been in nowise covered by the acts of congress. As has been well stated, the provisions of our law of which complaint is now made merely prescribe, for the lesser measures named, the contour and dimensions essential to make them conform to the adopted standard half-bushel measure, so as to secure fairness and uniformity and also admit of the proper application of the heaping rule of measurement which is defined bjr Section 6416, General Code. In the absence of a statute regulating the contour and dimensions of a standard measure in addition to prescribing its cubic contents, the law requiring the heaping of certain articles of produce could readily be rendered ineffective by increasing the height and decreasing the diameter of such measure. It is clearly within the rights and powers of the state to enact and enforce such regulatory statutes.

It is contended by plaintiffs that the provisions of Section 7965-1, which authorize the condemnation and confiscation of weights and measures or false or fraudulent measuring and weighing devices, are violative of the due-process clause of both the state and federal constitutions, and the question is presented whether the enactment and enforcement of such provisions are a valid exercise of the police power of the state.

It has been held by this court in the case of The State v. French, 71 Ohio St., 186, that the legislature may provide for the protection of fish, and to that end may declare nets set or used contrary to law a public nuisance and that they may be destroyed by wardens and other executive officers, and Section 6968-2, Revised Statutes, as amended April 26, 1898 (93 O. L., 303), is not in that respect unconstitutional on the ground that it deprives the citizen of his property without due process of law. The judge delivering the opinion quotes approvingly from Lawton v. Steele, 152 U. S., 133: “To justify the state in thus interposing its authority in behalf of the public, it must appear, first that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.” The court in applying the test held that the value of the property was a very proper matter for consideration. The case of The State v. French was distinguished from that of Edson et al. v. Crangle et al., 62 Ohio St., 49, upon the ground that the statute considered in the former case did not declare the nets which did not conform to the standard prescribed a public nuisance to be summarily abated. We think a further distinction of this case from that of Edson et al. v. Crangle et al. may be found in the fact that these measures, if outlawed as measures, as they are, have in fact no value at all. Being false and fraudulent, measuring devices, they are of use only to deceive and defraud, and certainly there could be no value in an article of that nature such as to admit of any claim for reimbursement. Its use, in fact the only use to which it can be put, is made a crime.

In this connection we quote from Mullen et al. v. Mosely, 13 Idaho, 457, 12 L. R. A., N. S., 394: “The police authorities of the state may be properly invested with power and authority to seize and destroy public nuisances and to seize such instruments and devices as are designed and intended for use in the commission of crime. * * * The police power of the state extends to everything necessary or essential to the due and ample protection of the public morals and the maintenance of the peace and quiet of the state as well as to the protection of life and property, and in the exercise of that power the state may authorize its officers to summarily abate and destroy nuisances and those things specifically designed and prepared for the commission of crime.”

In that case the court held that where property is of little value and is used for an illegal purpose the legislature may declare it a nuisance and direct its summary abatement. It may be contended that the distinction made between the cases of The State v. French, supra, and Edson et al. v. Crangle et al., supra, does not apply to the case at bar for the reason that the legislature has not expressly declared measures or measuring devices not in accordance with the standard prescribed to be public nuisances. We are constrained to adopt here the suggestion so aptly made by Judge Bigger in the decision on the demurrer to the original petition in this case: “That false weights are an abomination in the sight of the Lord we have the authority of the Holy Writ, and that false weights and measures were regarded as an abomination in the sight of men is evidenced by the fact that the use of such weights and measures was indictable at common law.” Certainly, a mere statement or declaration by the legislature would not and could not make more clear the fact that devices used and kept for use only for the purpose of deceiving and defrauding the public in market places are in and of themselves a public nuisance. The legislature has clearly so regarded them by making their use a crime and in recognizing them as being within the police power of the state and making them subject to summary condemnation and confiscation.

The necessity of regulation, such as provided by the statute under consideration, as well as an ample justification of the method of enforcement provided, is found in the language used by Justice Day, speaking for the supreme court of the United States, in the case of Schmidinger v. Chicago, 226 U. S., 578, in which case the constitutionality of an ordinance prescribing the weight of loaves of bread made and sold in the city of Chicago was upheld:

“Furthermore, laws and ordinances of the character of the one here under consideration and tending to prevent frauds and requiring honest weights and measures in the sale of articles of general consumption, have long been considered lawful exertions of the police power. * * * This court has had frequent occasion to declare that there is no absolute freedom of contract. The exercise of the police power fixing weights and measures and standard sizes must necessarily limit the freedom of contract which would otherwise exist. Such limitations are constantly imposed upon the right to contract freely, because of restrictions upon that right deemed necessary in the interest of the general welfare.”

These regulations prescribing a standard of weights and measures would be of little practical benefit to the people, in whose interest they are enacted, without an adequate, prompt and efficacious method of enforcing the adoption and use thereof. The thoroughness and efficiency of the method of enforcement provided by Section 7965-1, and about to be applied by the defendants, is attested by the fact that plaintiffs complain only of the impending action under authority of such statute, there being no allegation in the petition that the defendants threaten or contemplate the institution of a criminal prosecution under Section 13106 or 13109, General Code.

For the reasons heretofore stated the provisions of Section 7965-1 do not contravene either the state or federal constitution and are valid. It follows that the court of appeals properly sustained a demurrer to the amended petition, and such judgment is affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaicer, Newman and Jones, JJ., concur.


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    Smith v. The Nicholas Building Co.

      Damages — Loss of consortium — Injuries to husband — Wife cannot maintain action, when.

    A wife has no right of action against a person for the loss of the consortium of her husband caused by personal injuries sustained by him through the negligence of such person.
    (No. 14717
    Decided November 19, 1915.)
    Certified by the Court of Appeals of Lucas county.
    Plaintiff in error, Edna H. Smith, filed a petition in the court of common pleas of Lucas county, from which it appears that she is the wife of one Floyd J. Smith and that prior to the injuries complained of they were living happily together as husband and wife, and but for said injuries would continue to do so; that the defendant is the owner of an office building in the city of Toledo, in which there is a passenger elevator used for the purpose of carrying its tenants from the street to the floors and offices in said building; that the said Floyd J. Smith, a tenant of defendant in said building, while a passenger on said elevator and through the carelessness and negligence of the defendant, received severe injuries as the result of which he was permanently injured and crippled for life.
    Plaintiff alleges that after her husband suffered said injuries, and wholly because thereof, he became nervous, irritable, morose, fretful, excitable and ill-tempered, and has so continued ever since, and his mental condition in that regard is growing worse, so that she is now, and since the date the injuries were received has been, and during her future married life with her said husband will be, deprived of his society, companionship, conjugal affection, fellowship and assistance, to her damage in the sum of $15,000.
    The court of common pleas sustained a demurrer to the petition upon the ground that it did not contain facts sufficient to constitute a cause of action, and the plaintiff not desiring to plead further or amend, judgment was rendered in favor of the defendant. Error was prosecuted to the court of appeals, and the judges of that court, having found that the judgment of affirmance which they had agreed upon was in conflict with a judgment pronounced upon the same question by another court of appeals of the state, certified the record of the case to this court for review and final determination.

      Mr. Charles M. Milroy and Mr. S. S. Burts field, for plaintiff in error. •

      Messrs. Tracy, Chapman & Welles, for defendant in error.
   Newman, J.

The question presented here is whether or not a wife has a right of action against a person for the loss of the consortium of her husband caused by personal injuries sustained by him through the negligence of such person. It is conceded that such 'right did not exist at common law. It is suggested, however, that if the husband has the right to' recover for the loss of the consortium of the wife in an action predicated upon negligence, there is no reason why such right should not exist now in favor of the wife in case of the loss of the consortium of the husband, inasmuch as her common-law disabilities have been abrogated by statute. It is true-that at common law the husband could maintain an action for the loss of the consortium of the wife, but within the legal meaning of consortium there was included not only affection, solace, comfort, companionship and society incidental to the marital relation, but also the services of the wife. These services of the wife in the household, in the discharge of her domestic duties, in the care of the home and in the education and rearing of the children, belonged to the husband. They were of a practical and material value and capable of being estimated in money. If the wife for any reason was unable to perform them the loss was- the husband’s, not hers, and he was permitted to sue for the loss thereof. The loss of services constituted the gist of the action where the injury complained of was due to negligence. This right has not been abridged or affected by the legislation which has abrogated the common-law disabilities of the wife. B. & O. Rd. Co. v. Glenn, 66 Ohio St., 395. In that case it is said that the husband is entitled to the society and services of the wife and that for an invasion of such right he can maintain an action, but the basis of recovery in that case was the loss of services and the expenses the husband had incurred in healing the wife’s injuries. The services for which the wife may now recover compensation in her own name, since the removal of her common-law disabilities, are services other than those rendered in the discharge of her household and domestic duties and not in interference therewith. Bechtel v. Ewing, Admr., 89 Ohio St., 53.

In the case at bar plaintiff avers that, by reason of the injuries complained of, her husband has become nervous, irritable, morose, fretful, excitable and ill-tempered, so that she is deprived of his society, companionship, conjugal affection, fellowship and assistance. She is complaining of an invasion of those rights which are associated with what has been designated the sentimental side of-the marital relation and wholly unrelated to services. In none of the cases to which our attention has been called has it been held that the right, for which plaintiff is contending here existed in the husband unaccompanied by a claim for a loss of services. There is no reason then why the wife should be permitted to maintain an action where the same right does not exist in the husband. There is no statute conferring such right.

In the present case the wife predicates her right of recovery upon the negligence of the defendant in injuring her husband. Malice is not charged. There was no intentional wrong. Where there is an interference with the marital relation and the act complained of is wrongful and malicious and its natural and probably result is to accomplish the injury complained of, there is no question but that a right of action will lie, and either husband or wife may maintain an action against the wrongdoer who deprives the one of the society,'companionship and affection of the other. In such cases the law usually inflicts heavy damages upon the wrongdoer, more in the nature of punishment than as compensation. It is not necessary that there should be any pecuniary loss. As has been said, it comes within the range of concurrent and supplementary adjuncts to the criminal law for the prevention and redress of wrongs. Goldman v. Cohen, 63 N. Y. Supp., 459.

Counsel cite and rely upon Flandermeyer v. Cooper, 85 Ohio St., 327. That was an action against one who maliciously and wrongfully interfered with the marital relationship and deprived the wife of the society, affection and consortium of the husband. The element of malice does not enter into the case at bar, and there is therefore a marked distinction between the two cases.

It is the duty of the husband to support the wife and minor children out of his property or by his labor. In this case plaintiff is not asking, nor could she ask, damages for an injury inflicted upon the husband to the diminution of his earning* capacity and subsequent ability to support and maintain her. The husband is entitled to full compensation for such loss and in the eyes of the law he is made whole. In such case the impairment of the physical powers and faculties of the husband is taken into consideration in the award of damages and he is, theoretically at least, fully reimbursed on account of such loss. The wife and the children are indirectly benefited by such recovery. As was said in Fennef v. N. Y. C. & H. R. Rd. Co., 203 Mass., 278: “The diminished value of the husband’s consortium with his wife, in such case, is like the diminished value of the work that the husband can do for the support of his wife and the education and support of his minor children. The negligent defendant is supposed to have made full pecuniary compensation to the husband and father for his injury. In the benefit from that payment the wife and children will be expected to share to some extent. If they still suffer loss, it is not direct, but only consequential.” And in Goldman v. Cohen, supra: “The fault of negligence rarely demands a greater remedy than mere compensation. The right of action is remedial, not punitive. It reaches not out to those indirectly suffering by .impairment of the domestic relations, giving* to the wife or child pecuniary equivalent. So far as the law can, it neutralizes such indirect losses by compensation to the husband and father, thus giving* him the means of supplying the loss in earning* power and expenses of sickness, and so avoids double or triple recoveries for the same elements of compensatory damages by different persons against him whose fault only gives ground for one restitution.”

And again, it is well settled that in an action to recover damages for injuries sustained through negligence the defendant can be held to respond in damages only for the direct and proximate result of the negligent act complained of. In determining what is the direct or proximate cause the rule requires that the injury sustained shall be the natural and proximate consequence of the negligence alleged. The loss of the husband’s society, companionship, conjugal affection, fellowship and assistance is, we think, not the natural result of the physical injury sustained by the husband. Such could not have been foreseen or anticipated by the defendant as likely to follow from his negligent act. “Loss or impairment of conjugal affection is certainly not a natural-result of physical injuries suffered by one of the parties to a marital union. Neither is there to be expected an impairment in other ways of the conjugal relation viewed from its sentimental, as distinguished from its practical side. It is scarcely to be imagined that the law in the early stages of its development had any notion of assuming that a physical injury to a wife could be attended with such consequences as these, or of justifying an inquiry whether, in the given case, such consequences had actually arisen, or of attempting to measure the pecuniary value of such consequences and awarding that measure to the husband.” Marri v. Stamford St. Rd. Co., 84 Conn., 9. Where malice enters into the matter and there is an intentional wrong, and where the natural and probable result of the act of the wrongdoer is to accomplish the injury complained of, the case is entirely different. In Brown v. Kistleman, 177 Ind., 692, the question presented here was before the court for consideration and that court reached the same conclusion we have reached.

For the reasons we have given, the petition did not constitute a cause of action and the demurrer was properly sustained.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Jones and Matthias, JJ., concur.

Wanamaicer, J., dissents.